There are many misconceptions surrounding the question of custody in California, such as the outdated, incorrect idea that the court will prefer the mother (California law specifically states that a court cannot prefer one parent over another based on gender). Another misconception is that the child will make the decision regarding which parent he or she will live with, although there is truth to the fact that a child’s preference can play a role in which parent will get custody.
How Custody is Determined in California
Parents are free to work out between themselves a custody agreement which can involve sole custody going to one parent with the other having visitation or both parents sharing legal and physical custody of the child with a parenting plan laying out the schedule for physical custody. Certainly, a child’s preferences might influence how this agreement and plan are shaped. Such a plan will have to be approved by a court as being in the interest of the child, but courts generally welcome and want parents to take the lead in putting this framework together.
When parents cannot agree on custody issues, the court will make a custody determination which is in the best interests of the child. This standard involves a number of factors listed in the California family code such as the ability of each parent to provide for the needs of the child; the relative stability of the child’s current situation (social, school, and family ties); the presence of other people in each parent’s home; drug and alcohol issues; domestic violence issues; and so on.
One of the factors that also goes into the best interests of the child analysis is in fact the child’s preferences if the child is “old enough to express a meaningful preference.” Although the law does not specify what age this would be, a general rule of thumb is that the older the child is, the more likely the court will weigh the child’s preference more heavily in the cumulative analysis regarding custody.
Courts Will Look Down on One Parent Attempting to Alienate the Other
Many parents have tried to influence their child’s preferences prior to a custody determination by speaking poorly about the other parent and specifically about what it would be like to live with the other parent. Whether there is a rational basis for this or not, this strategy can backfire on a parent as California courts want children to maintain contact with both parents whenever possible and will in fact use one parent’s unwillingness to encourage contact with the other parent as a factor which weighs against the first parent in custody determinations.
Rather than trying to influence custody proceedings through these types of communications with your child, you are better off speaking with an experienced family law attorney who can assess your situation and help present your best case for custody to a California court.
For any questions on divorce law in California, contact the Law Office of Kelley Finan today to schedule a consultation to discuss your circumstances.