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Does a Child's Preference Matter in Custody Decisions?

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Child custody disputes can be some of the most complex and emotionally complicated matters to resolve in family law. The existence of a dispute implies that parents disagree on who should be awarded more time with their children or whom their children should live with.

There are a variety of factors that ultimately go into making these decisions, but could a child’s parental preference be one of them? It’s a difficult question to ask, but an appropriate one that often comes up when parents disagree on who should get more time with the child. After all, if the parents so bitterly disagree on custody, shouldn’t the child have a say? As it turns out, they can – but only under limited conditions.

How the Courts Decide Child Custody

At the end of the day, all child custody disputes are decided by a judge. That judge arrives at their decision by evaluating what’s in a child’s best interests, which is the court’s only concern. Oftentimes parents feel they are entitled to custody over their children by virtue of being parents, but the court isn’t concerned with the parents’ interests – only the child’s interests.

There are a variety of factors that judges look at to determine child custody, among them are the following:

  • Each parent’s fitness as a parent
  • Each parent’s history of providing care for the child
  • Each parent’s ability to afford the child’s basic needs
  • Each parent’s household stability
  • The child’s overall health and safety
  • Any history of domestic violence or abuse
  • Substance abuse
  • Which parent is less likely to engage in parental alienation
  • Any false allegations of abuse to gain an advantage in custody proceedings
  • A child’s preference (under limited circumstances)

It’s unlawful for the courts to take either parent’s sex or gender identity into account when it comes to child custody. This means that it should be irrelevant whether a parent is a child’s mother or father when seeking custody.

When a Child Can Express a Preference for Custody

The courts in California can consider a child’s preference in a custody dispute, but only when the child is at least 14 years old. At that age, a child is considered to be able to express an intelligent opinion on custody and visitation matters.

Importantly, however, judges are still guided by deciding in the child’s best interests. Although children of sufficient age can express their preferences, it’s no guarantee that the judge will decide in that direction. That said, a judge can also rely on the child’s preference to determine custody if nothing else weighs too heavily in one direction or the other.


Although very young children won’t be able to pick the parent that they live with most of the time, it’s possible for children 14 years old or older to do so. The courts will ultimately rule in whatever the judge believes is in the child’s best interests, but sometimes the child’s preference could tip the scales in an otherwise level dispute.

If you are challenged by a child custody matter, get legal assistance and support you can rely on. Our attorneys at Claery & Hammond, LLP have many years of combined experience that we use to fight for our clients in complicated matters every day. If you need someone to fight for you and your children, reach out to us today!

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