California Family Code Section 3042(a) answers the question about what age can a child decide which parent to live with in California. If the child is determined by the court to be of "sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody" (California Family Code Section 3042(a)). The reasons for the child's wishes will also be an important factor and should be heavily scrutinized.
Also, the court typically has discretionary authority and control over the examination of the child as a witness and can preclude the child from being called as a witness by either party if the court finds calling the child as a witness would not be in the best interests of the child (California Family Code Section 3042(b)). The court could and may dictate or provide indirect or a different means of obtaining information regarding the child's preferences as an alternative so as to protect the child's best interests and not make him/her directly part of the matter. Generally, putting a minor child in the middle of a child custody dispute having to choose between his/her parents is something no court or judge wants to do.
In 2011, a new child custody law will go into effect pertaining to a child's preference as it relates to custody and visitation. Effective January 1, 2011, California Family Code section 3042(c) now requires the court to allow children 14 years of age or older to testify as to custody or visitation preferences unless the court determines that doing so is not in the child's best interests. If the family law court determines that testimony is not in the child's best interest, the court must state its reasons on the record (California Family Code Section 3042(c)). Note, even children under 14 years of age can address the court regarding custody or visitation if the court determines it is appropriate pursuant to the child's best interests (California Family Code Section 3042(a),(d)). If the court refuses to permit a child's testimony even though the child wishes to be heard, the court must make efforts to find a way to obtain the child's input (California Family Code Section 3042(e)).
Also, minor's counsel, an evaluator, an investigator, or a mediator who provides recommendations to the judge shall indicate to the judge that the child wishes to address the court, or the judge may make that inquiry in the absence of that request. A party or a party's attorney may also indicate to the judge that the child wishes to address the court or judge (California Family Code Section 3042(f)).
It's important to note, children are not required to express to the court his or her preference or to provide other input regarding custody or visitation (California Family Code Section 3042(g)). While California's new law has made it easier for children's wishes to be heard in court, in most child custody cases, putting a child in the middle of a child custody battle having to choose between his/her parents is generally not in their best interest and something most children would not want to do.
The Judicial Council shall, no later than January 1, 2012, promulgate a rule of court establishing procedures for the examination of a child witness, and include guidelines on methods other than direct testimony for obtaining information or other input from the child regarding custody or visitation (California Family Code Section 3042(h)).
The overall best interests of the child is the standard for child custody determinations and modifications in California (California Family Code Section 3040) and most all states. The child's preference is generally only one of many factors the court may take into consideration and weighed against all other factors in an order of preference to determine the overall best interest of the child. Age specific statutes and laws related to a child's preference for custody or visitation can vary from state-to-state. For child custody laws by state and legal advice about your situation you'll want to speak with a child custody attorney.
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