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What role do children have in custody decisions?

If you are divorcing with minor children, your custody arrangements will be a major focus of the divorce process. Ideally, you and your soon-to-be ex-spouse will be on the same page or able to quickly reach accord on these matters.

But ours is not a perfect world and all too often, custody matters can become hotly contested between the parents. When trying to come to an agreement, the children's wishes for custody could also have an impact.

Typically, teens who are 14 and older can play an active role in custody decisions, with the court's permission after evaluating the situation with or without input from a custody evaluator or mediator.

But changes made to the California Family Code in the last decade expanded children's ability to state their custody preferences when their parents divorce. The guideline of now states that children "of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation" without listing a specific age, presumably to allow younger-but-mature children to weigh in to the court.

Of course, this does not mean that the children are in the driver's seat of any custody decisions. But the courts are beholden to make all decisions in the best interests of the children, which can sometimes include their own preferences over where they shall live most of the time.

The problem here can be that children are not always able to make decisions that are based on their best interests. Some may angle to live with the parent who enforces the least discipline. Others could be subject the undue influence of one or both parents, which could produce much anxiety in them should they be asked to state a preference.

If your child prefers to live with you after the divorce, you and your family law attorney can discuss the impact that this will have on the way you approach custody decisions to the court.

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