Parents often ask me why a judge won’t just ask their child which house they’d rather live in or how much time they want to spend with each parent. In California, Family Code §3042 lets a child’s preference count — but only kids 14 and older have a right to address the Court, and most children I see in contested custody cases are much younger. Here’s why judges and attorneys don’t just ask younger children what they want in a parenting plan:
If this is relevant to your case, talk to your own family law attorney about how your child’s age and circumstances apply to your facts.
- It scares kids. A child usually senses that naming one parent will hurt the other. As divorce coaches note, a loyalty conflict doesn’t require a parent to say, “take my side.” It only requires the child to feel it. And children notice and sense a lot more than you realize.
- Under 12, kids can’t separate “want” from “workable.” Younger children don’t yet understand what’s happening, can’t articulate their feelings, and often feel over-responsible for the outcome.
- They default to what they’ve already known, not what’s realistic — birthday parties with both parents and every grandparent, holidays/vacations exactly as they’ve always been. Kids often default to what they’ve experienced, but that’s nostalgia, not a workable parenting plan in a custody dispute, and it’s rarely something both parents can deliver even after a divorce is finalized.
- A promise you can’t keep backfires. Naming a preference the court or the parents can’t actually deliver just sets the child up for disappointment they didn’t need.
- Even a teen’s input stays private. Kids 14+ can address the court, but it happens through an in camera interview, minor’s counsel, or an evaluator — never as testimony in front of both parents — and it’s one factor under the best interest standard, not a vote.
- It’s not the child’s job. Parenting plans are not the child’s job to work out! The adults — the parents (and their helpers such as lawyers, parenting coaches, therapists, etc) — should be doing this. The child’s job is just to be a child.
