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I've heard that CHILDREN can state their PREFERENCE at 13....
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Q. I've heard that children can state their preference at age 13, is this true?
[NOTE: THIS BLOG CONTENT IS LARGELY SUPERSEDED BY REVISED FAMILY CODE SECTION 3042 WHICH TAKES EFFECT 1/1/11 - T.W. Arnold, 12/3/10]
A. Not as you pose the question. This is what Family Code section 3042 says:
"Wishes of child to be given due weight; Preclusion of calling of child as witness
(a) If a child is 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.
(b) ..., the court shall control the examination of the child witness so as to protect the best interests of the child. The court may preclude the calling of the child as a witness where the best interests of the child so dictate and may provide alternative means of obtaining information regarding the child's preferences."
The threshold question is always going to be whether the child is of a sufficient age and capacity to reason to form an intelligent preference and there is no bright line rule or specific age on the subject. One can make generalizations for instance that some children nearing the age of 12 or 13 or 14 have a sufficient capacity, but that is not automatically assumed. It depends on each child. You can imagine that the child's opinion of their own capacity to reason is not determinative, nor is your opinion. Children may be subject to conditions or "disorders" that affect the characterization.
Commonly where a preference must be expressed, it comes through the medium of a mediator, the child's therapist, or a forensic therapist or psychologist. Most judges are extremely reluctant to take testimony from a child, even in chambers, especially on routine matters like preferences (as opposed to situations where a child is alleged to be a victim of some form of abuse and so may need to be questioned). In Indio, the family court mediators will often meet with children upon request. There always remains a fear that one child or the other or both is actively coaching the child - another reason why child's preferences as expressed should be given "due weight."
So, my advice to you is this: Consider what you propose carefully. Try to work through it with the other parent. Attempt to understand the root causes of a child's stated preference, and whether they are independently reasonable - or even true, since of course your son loves you and may be reluctant to leave you at the end of the summer.
And, certainly, where objective facts exist that strongly argue for a change of custody, the child's preference may tip the scales in one direction or the other.
Thurman Arnold III
4/8/10 |
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Posted By Thurman Arnold on
April 08, 2010 07:17 am |
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