California courts base child custody decisions on the legal doctrine known as "the best interests of the child." The state recognizes that it might not always be the best decision to force a child to live with one parent when he may be closer to the other. But at what age the child becomes old enough to make this judgment for himself is in a legislative gray area. The outcome often comes down to the subjective opinion of a particular judge on a case-by-case basis.
Historically, California’s statutes have not set a specific chronological age when a child is old enough to contribute his opinion to a custody dispute. In 2001, a California court ruled that a 5-year-old was not mature enough; in 1996, a court ruled that a 13-year-old was sufficiently mature. California's family code states that a child must be of “sufficient age and capacity” to have a reasonable preference. The decision to honor a child's wishes ultimately comes down to the estimation of the individual judge.
A California judge will not look solely at a child's level of maturity to determine if his opinion as to custody should be considered. Judges also attempt to determine why the child is making such a choice. For example, a 16-year-old might want to live with his father because his father has promised to lift curfews. A 10-year-old might prefer to live with his mother because she has for weeks indulged his every whim. In either case, the judge probably won't honor the child's wishes, nor does he have to. If the judge finds that the chosen parent is irresponsible or unstable in any way, he is not likely to accommodate the child's feelings.
A child generally is not required to testify in open court about his wishes, especially if he is very young, but California judges often consider a child’s wishes when a mediator, counselor or custody evaluator passes them on. If the child does want to talk directly with the judge, and the judge permits it, the discussion usually occurs “in camera," which means that the judge meets with the child in a private setting, such as the judge's chambers, rather than in the courtroom. Either parent can request a meeting with the judge for their child.
California Assembly Bill 1050 amends California’s Family Code, effective January 1, 2012, to set some concrete guidelines: If a child older than 14 wants to talk to a judge or to testify in a custody hearing, and if the judge doesn’t allow him to do so, the judge must state in court why he denied the request. Parents have the right to appeal the judge’s decision because it's a matter of public record. The amendment doesn’t rule out the input of children younger than 14, but a judge is not required to explain his reasoning in open court if he refuses to hear the input of a younger child. The amendment also allows an older child to testify in open court if he makes such a request.
- Superior Court of California, County of Orange: Custody and Visitation
- Dishon & Block Divorce Attorneys: What Age Does a Child Need to Be to Decide Which Parent They Live With?
- Sacramento Press: Ask the County Law Librarian – Children’s Wishes in Custody Disputes
- Collaborative Law and Mediation Office of Lorna Jaynes: Child Custody and California AB 1050
- The Free Dictionary: In Camera
- FindLaw: Custody Factors