Santa Cruz Family Law Attorney

Children's Wishes During a Custody Dispute

During a child custody hearing the wishes of a child may become important. This article includes the creation of an imaginary family to display when and how much importance a child's wishes having during a custody hearing. The court will determine if the child can intelligently make their wishes known and given them the proper consideration.

The fictitious family for the purposes of this article shall include the father Randy, mother Catherine and nine year old daughter Anna. Randy and Catherine went though a divorce four years ago and have been following the initial custody agreement. Now Catherine is seeking to have the current agreement modified because Anna has expressed unhappiness about the time she spends at her father's house.

During the proceedings Catherine has asked the court to listen to Anna's wishes. The judge will listen to Anna's preferences if he feels that she is of sufficient age and capacity to intelligently tell the court her preference. As is common the judge agrees to interview Anna to determine if she meets these criteria.

There is no set age requirement and the court begins to ask Anna questions regarding her custody preference. She tells the judge that Randy has remarried recently and she does not get along with her new step-brother. Anna tells the judge that she would rather be with her mother where it is only her and her mother. The judge will acknowledge Anna's preference and look at it compared to all the other interests involved.

This is a challenging issue for the judge. Here he must give due weight to Anna's preference if he find she has intelligently expressed a preference. However just disliking a step-brother is likely not a substantial reason to want to terminate or reduce Randy's custody time.

In California it is accepted public policy that a child's best interest is served by maintaining a regular and consistent relationship with both parents. In addition the courts do not want to make orders that would discourage parents from remarrying. So a modification would run counter to both accepted public policies that courts generally follow.

In this situation the court may not grant a modification because of Anna's preference. It is understandable the hardship being put on her, but not liking a stepparent is pretty common and it may not be enough to out-weight the public policy reasons. It may be possible as time goes on, Anna will have more cement reasons to give her preference.

DISCLAIMER: This article is meant only to provide information and is not intended as legal advice. If you have questions concerning your particular case you should make an appointment to talk to an attorney or mediator about your options. I would love to hear what other estate planning or familily law issues you find important.

by Keith Dysart, Santa Cruz Family Law Attorney and Mediator

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