One of the most common and emotional questions parents ask is, "When does my child get to decide who they want to live with?" In a difficult custody battle, it is tempting to think that your child's preference will be the "tie-breaker" that solves the case. In California, the law is complex. A child's preference is just one factor among many, and it is almost never the only deciding one. Understanding how judges in Santa Ana handle this delicate issue is key. This is an area where a compassionate family law attorney in Santa Ana can provide crucial guidance. At JOS FAMILY LAW, we help parents understand the real-world application of this law.



The first thing to know is that there is no "magic age" in California. There is a common myth that at age 12, 13, or 14, a child can "choose." This is false.



The law (Family Code 3042) says that a child who is "of sufficient age and capacity to reason" must be allowed to express their preference to the judge, if they wish to. The judge then has the power to decide how much "weight" to give that preference.



A 16-year-old who can clearly articulate mature reasons for their choice (e.g., "My mother's home is quieter, and I need to focus on my AP classes") will be given significant weight.

A 10-year-old's preference will be given some weight, but much less.

A 6-year-old's preference will be given almost no weight at all.

The reason for the preference is more important than the preference itself. The judge is a detective. They must try to figure out why the child has this preference. If the child's reasons are mature and logical, the judge will listen. But if the judge suspects the child's preference is based on "immature" reasons (e.g., "Dad's house has no rules," "Mom buys me more video games"), the judge will disregard it.



Worse, if the judge suspects that one parent has been "coaching" the child or "alienating" them against the other parent, it will backfire disastrously. This is considered a form of child abuse, and a parent who is found to be doing this will severely damage their own case.



So, how does a judge hear from a child? It is almost never done in a public courtroom. A judge does not want to put a child on the witness stand and force them to "choose" between their parents. Instead, there are two common methods:



1. In-Chambers Interview: The judge will meet with the child privately in their office, with only a court reporter present.



2. Through a Third Party: This is more common. The child's preference will be communicated through the CCRC mediator, a court-appointed Child Custody Evaluator, or a Minor's Counsel (an attorney for the child).



This is a very delicate issue. You should never, ever put your child in the middle. Do not ask them who they want to live with. Do not coach them on what to say. Your lawyer's job is not to "prepare your child to testify." The best family law attorney in Santa Ana will tell you their job is to build a case based on the other "best interest" factors—your stability, your involvement, and your willingness to co-parent.



If your child has a strong, mature, and independent preference, you can discuss this with your attorney, who can then advise the court. But do not make this the center of your case.



To learn more about the delicate issue of child's preference in Orange County, contact the compassionate legal team at JOS FAMILY LAW.