In child custody disputes, the “wishes” of a 14-year-old are not absolute

Whichever way you look at it, 14 does not equal 18.

In Family Law disputes involving child custody, when a child turns 18 years old, they are then considered an adult and are able to decide how and where to live. Still, there is no shortage of parents involved in such cases who hold the hand of their recently turned 14-year-old children and demand that judges consider and adhere to the children's preference on custody or visitation matters. Parents so often believe with conviction that when their child turns 14 years old, California's law permits the child to decide with which parent they would like to spend time with and reside. Over my 18+ years serving as an attorney in Family Law, this is one of the few myths that persists. The belief that 14 is a magic number stems from a gross misinterpretation of Family Code Section 3042. Family Code Section 3042, labeled "Wishes of a child considered," comprises 10 sub-sections which outline the specifics of when a child's preference on custody and visitation matters may be considered. The primary two which lead to the myth introduced above are as follows:

(a) "If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation." Cal. Fam. Code § 3042

(c) "If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child's best interest, in which case, the court shall state its reasons for that finding on the record." Cal. Fam. Code § 3042

It is easy to see where the mixup comes from. However, the law is very intentional. It does not require 14-year-old children to exhibit a preference, nor does it necessitate that judges permit the child to speak up even if the child wishes to do so.

Per a clear interpretation of the law stated above, a 14-year-old child might not be permitted to address the court and share their preference on custody or visitation matters if:

The child does not wish to address the court on such matters

The child has not shown a sufficient capacity to reason and form preferences in their own best interest

The court determines that it would be detrimental to the child's best interest if the child were to exhibit their preference

Even if a 14-year-old child is considered by the court to be of sufficient age and reason to address the court and doing so is in the child's best interest, there is nothing in the law that obliges judges to listen nor to adhere to that preference, for a child's preference is only one factor of many that is involved in the decision of custody and visitation matters.

The rest of Family Code Section 3042 clarifies that there is nothing significantly special about the age 14. A child who is younger than 14 years of age might be permitted to address the court if the judge has determined that doing so is in that child's best interest. Generally, courts tend to give more weight to the opinions of older children compared to younger children.

However, it is important to understand that judges consider far more than a child's age when deciding how much weight to give to the child's preference. For example, the reasons for preferring to reside with one parent over the other are important. If a child states that they prefer to live with their Mom and acknowledges that this is only because the Mom is less strict, the judge might not give too much importance to the child's preference. On the other hand, if a child appears to be of sound mind and claims that they would like more visitation hours with Dad so they can attend therapy sessions with him to build a sustainable father-child relationship, such a reason would likely result in the judge attributing more weight to the child's preference.

All in all, the decision of whether to permit a child to address the court regarding their preference

on custody and visitation matters as well as the weight given to the preference if expressed, like most things in law, varies on a case by case basis and is subject to the discretion of the court. One thing is certain, however. Fourteen is not a magic number. Family Code Section 3042 does not guarantee a 14 year old child the opportunity to address the court and it does not mean that the court must rule in accordance with the child's preference.