How to Handle a Child's Legal Preference in California Custody Cases.

Understanding a Child's Legal Preference in Custody Cases

When parents separate or divorce, determining child custody arrangements can be one of the most complex and emotionally charged matters to resolve. In California, as in many jurisdictions, the best interests of the child are paramount when courts make custody decisions. But what happens when the child expresses a preference for living with one parent over the other? This article explores how California law handles a child's legal preference in custody cases.

Legal Framework in California

California law acknowledges that, under certain circumstances, a child's preferences regarding custody should be considered. According to Family Code Section 3042, children who are of sufficient age and capacity to form an intelligent preference may be allowed to state their opinion in court. While there is no specific age at which a child's preference must be considered, courts commonly give weight to the preferences of children aged 14 and older.

Evaluating the Child's Preference

The court's primary concern is the child's best interest, and this remains the guiding principle even when a child states a custody preference. Judges will consider several factors when evaluating a child's expressed wishes:

It is crucial to understand that a child's preference does not equate to an automatic decision. Instead, it is one factor among many that the court will assess.

Case Examples

In re Marriage of Burgess (1996) is a landmark California case that addressed issues related to child custody and parental relocation. While it did not specifically focus on a child's preference, it underscored the importance of maintaining stability and continuity in the child's life, which indirectly relates to how courts might assess a child's wishes in terms of their well-being.

Role of Mediators and Evaluators

To better understand the dynamics involved in a child's expression of preference, family courts often involve mediators or evaluators. These professionals can interview children independently from their parents to ascertain their true feelings without parental pressure. The mediator or evaluator then reports their findings to the court, which may include recommendations for custody arrangements that align with the child's best interests.

Practical Steps for Handling a Child’s Custody Preference

Parents who are facing custody decisions involving their children’s preferences can take several practical steps:


In California custody cases, while a child’s legal preference is an important consideration, it must be balanced against other factors that serve the best interests of the child. Courts endeavor to ensure that these preferences are authentically the child’s own and are given appropriate weight according to their age, maturity, and ability to discern what is truly best for them. Navigating this aspect of family law requires sensitivity and care, both from parents and legal professionals alike.