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Can a Child in California Choose Which Parent to Live With During a Custody Battle?

child holding onto dad's leg

Custody battles can be frustrating and emotionally draining for both the children and the parents undergoing a court decision. When the court determines custody, children may be asked what parent they would prefer to live with. However, this doesn’t necessarily mean the court has to award custody to that parent.

The Child’s Preference

California state law defines the child's decision through three parameters:

  • Who the child decides to stay with

  • How clearly the child states their choice

  • The age at which a child can make an informed decision.

Currently, Section 3042 of the Family Code states that if a child has sufficient mental capacity to make a well-informed decision about their custody preference, then the court shall consider and give weight to the child’s wishes. In other words, the court's weighing of the child's preference is entirely determined by the context of the case.

At What Age Can a Child Decide Which Parent To Live With in California?

If the child is fourteen or older, they are permitted to state their case openly in court. However, the court may still decide that it is not in the child's preference is not an appropriate custody arrangement. If the child is under fourteen, they may still testify if the court determines it is in their best interest to do so and the child has the intellectual capacity and emotional maturity to make a choice.

The Court Has the Last Say

Additionally, the child's decision is not the end-all-be-all in court. If the court determines that the child was motivated by social pressure from their family, parental alienation occurred, or they were trying to escape reasonable discipline, then the court reserves the right to overturn the child's testimony.

On the other hand, if the child is motivated to testify based on alleged abuse or clarifies that they have a stronger bond with one parent, the court is much more likely to give higher precedence to the child's testimony. Regardless of the child’s preference, the court will base its custody decision on what is in the child’s best interest.

A San Diego Child Custody Attorney Can Help

The issue of child custody rights is contentious and confusing. It can be difficult to predict the final ruling or the type of child testimony that will satisfy the court, especially when numerous other factors can impact the court's decision. In these cases, it's always best to consult with an experienced family law attorney to determine the best action to take. Our San Diego family law attorney has extensive experience in negotiating and litigating child custody issues. Embry Family Law P.C. is always here if you need an advocate.


Contact Embry Family Law P.C. at (619) 485-6476 for a free consultation.

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