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Sunday, May 31, 2020

Your Child Wants to Live with the Other Parent?

It's common to find that children will want to live with the "other" parent in many cases.

Sometimes it's for valid reasons, but not always.  The California code does address this and even states an age, apparently believing that by that age the child has enough reasoning power to make the decision; but the child's decision is subject to the court confirming it. Meaning, it may not happen.

Parental alienation is fairly common in cases, often (in attorney's experience) it's the mother doing it, but not always. Sometimes a parent with narcissistic tendencies may tend to do this, see
https://www.psychologytoday.com/conditions/narcissistic-personality-disorder for information on this problem generally. The afflicted parent will continue to push the fact that the child must stay with him/her even when lacking a factual basis. Attorney has seen many cases where the parents actually share custody but fight about everything anyway. Usually that is due to a build up of resentment in the relationship for varying reasons, and the parents never (and I mean never) resolve their own issues.  Instead, they carry the resentment forward, which is not helpful.

California Family Code Section 3042 (a)-(d) states:

      (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
When a Court evaluates a child's choice regarding custody and visitation, the Court must listen to a child age 14 and older, UNLESS the Court determines it is not in the child's best interest do so? [When child is less than 14, the Court must first decide whether it is in the child's best interest to listen to the child..]
Courts can certainly listen to the preference of the 14+yr old child, but isn't required to cut off visitation even if the child requests it. Also, non sincere efforts by parents to do so are often seen, but not necessarily granted. Using mediation, or appointment of a custody evaluator or investigator may be required if issues of parental alienation or emotional or psychological abuse are present.  Other professionals may recommend differently if the parties have made a lifetime of being in court; in the worst cases, the children can even be placed in neither parent's care.
Custody is one of the most highly fought-over issues in many divorce cases. They can also be the most expensive. Attorney herein has found that many of the hard-fought custody cases really should have never been needed.
But parents sometimes find that emotional scars to one parent will cause that parent to become the "enemy" and then the battle doesn't stop. Unless the actual facts support harm to the child, it is often the attorney that has the better common sense argument who will win out. As for the child, he/she might get lucky.