Posted by Jeremy Swanson
On July 15, 2015

“Can A California Judge Consider The Wishes Of A Minor When Determining Custody?”

“Can A California Judge Consider The Wishes Of A Minor When Determining Custody?”

In California, a judge’s ability and need to consider the wishes of a child is governed by a combination of California Family Code Section 3042 and California Rule of Court 5.250. If you have a situation where you believe a minor should have input, you should read each section in its entirety, as there are a lot of considerations and factors that go into the determinations.

But, in a nutshell, you should be aware of the following: judges may consider the wishes of a minor in all cases where the minor is able to form an intelligent preference, but the wishes are never the sole determinative factor. The court can take into consideration the maturity and age of the child both in determining the kind of input the minor should have and the strength of the input.

The court may get this information either through mediation, a child custody evaluator (only used in some counties), family court services investigations, admissible evidence from parents or witnesses, or through an authorized counselor.

In some cases, the judge may allow direct testimony of a minor. Rule of Court 5.250 provides that minor’s under the age of 14 may testify if the court makes an affirmative finding that they have the maturity to testify and that the process will not be harmful to the child. At the age of 14, minor’s have the right to address the court unless the judge determines the testimony would not be in the minor’s best interest, irrelevant, or would violate a different factor listed in Rule of OCurt Section 5.250(c)(3).

If the court determines that the minor may testify, the court has various methods at its disposal to ensure the well-being of the child, including having testimony taken in chambers without parents or attorneys present, or by questions written and approved in advance. In these cases the minor will be appointed Minor’s Counsel to represent their best interest and to advocate for an appropriate forum for the testimony and for appropriate questions. In a small percentage of cases, the court will allow direct testimony from the witness stand.

The overriding interest of the judge will be, always, to protect the interest of the minor, and to make a decision that is in the best interest of the child. This will not always be what the minor wants. The older a minor is, the more weight the court will give to the testimony or wishes, in general, as the law recognizes that as children turn into teenagers, they begin to participate in the decision making process for their lives and can make intelligent and considered wishes known at appropriate times.


DISCLAIMER: All legal principles quoted are valid as of the date of writing in the State of California. However, you should NEVER base your actions on a legal article, blog, or internet story, as facts in real life are complicated. You should have your case evaluated by an attorney experienced in the area of law needed for your case. In addition, there are often exceptions and potential changes to results that occur due to facts that you may think are trivial or unimportant. This article should not be taken in any way as legal advice on your specific legal matter.