My child wishes to live with me. Can I get primary physical custody?
The good news is that the law changed as of January 1, 2012 to allow the child's voice to be heard in family court. This law applies both to divorce and paternity cases. Essentially, the law requires the family law judge to allow a child who is 14 years or older to "address the court" unless the judge states on the record why it is not in the child's best interest to allow it.
A child's wishes about where he or she would like to live ("physical custody") is based on whether the child is of sufficient age and capacity to form an intelligent preference. If so, then the judge should give "due weight" to where the child wants to live.
So, how do you get the family law judge to change physical custody orders? You file what is called a Request for Orders. Please see the article entitled "Request for Orders" for more information on how to file a modification of child custody: legal custody or physical custody.
Generally speaking, the court should give greater weight to where the child wishes to live in modification of custody proceedings. So, for example, if you share joint legal custody and joint physical custody, you may want to seek a modification to request primary physical custody of your child because he or she wishes to now live with you. Custody laws can be complex, and you would be well-advised to seek the advice of an experienced family law attorney to assist you.
Questions the judge may ask:
1. Would it benefit the court to question the child?
2. Would it benefit the child to be questioned?
4. Will the questioning take place in open court? In the judge's chambers?
5. Is there another way to obtain the information? Perhaps through a Minor's Interview or Minor's Counsel?
6. What is the degree of child suggestibility?
7. Is a Child Custody Evaluation appropriate?
The new statute is quoted below for your reference.
3042. (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.
(b) In addition to the requirements of subdivision (b) of Section 765 of the Evidence Code, the court shall control the examination of a child witness so as to protect the best interests of the child.
(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 interests. In that case, the court shall state its reasons for that finding on the record.
(d) Nothing in this section shall be interpreted to prevent a child who is less than 14 years of age from addressing the court regarding custody or visitation, if the court determines that is appropriate pursuant to the child's best interests.
(e) If the court precludes the calling of any child as a witness, the court shall provide alternative means of obtaining input from the child and other information regarding the child's preferences.
(f) To assist the court in determining whether the child wishes to express his or her preference or to provide other input regarding custody or visitation to the court, a minor's counsel, an evaluator, an investigator, or a mediator who provides recommendations to the judge pursuant to Section 3183 shall indicate to the judge that the child wishes to address the court, or the judge may make that inquiry in the absence of that request. A party or a party's attorney may also indicate to the judge that the child wishes to address the court or judge.
If you would like assistance in filing a Request for Orders regarding custody and visitation, child support, spousal support, attorney’s fees, etc., please contact the Law Offices of Cathleen E. Norton at (310) 300-4021. We are here to help you with all of your family law needs, including but not limited to, child custody.
The Law Offices of Cathleen E. Norton is a top family law firm dedicated to protecting your legal rights. Our goal is to empower you. Our job is to protect you. Cathleen E. Norton, Esq. is an experienced family law attorney who obtained both her B.A. and J.D. credentials from UCLA. You won’t find a better qualified attorney to represent you! We have offices in Beverly Hills, San Fernando Valley, and Westlake Village and service family law cases in Los Angeles, Ventura, Orange, San Bernardino and Riverside Counties. Call us today for a free consultation at (310) 300-4021. For more information about the Law Offices of Cathleen E. Norton, please visit our website at www.cnortonlaw.com.