Overview of Custody
In California, there are two components to child custody, legal custody and physical custody. Legal custody refers to the authority to make major decisions regarding your child, such as those related to health care, education and religion. Physical custody refers to where the child spends overnights as well as day-to-day decisions, such as the clothing the child wears. Both types of custody can be held solely by one parent or shared. If one parent is granted sole physical custody, the other parent typically has visitation privileges.
Best Interest Factors
In making all custody and visitation decisions, California judges are required to promote the best interests of the child after considering several factors outlined in state law. These factors look at which parent is better able to provide for the health and safety of the child, has a more stable home environment and is better able to facilitate the child's contact with the other parent. Also, the court can consider the preference of the child, if the child is of a suitable age and capable of making reasonable decisions. Unlike some states, which have a specific age specified in the law, California defers to judges to both make this decision and determine how much weight the preference should be given. Generally speaking, teenagers are typically better able to comprehend the nature of custody proceedings compared to younger children.
Although there is no specific age that qualifies a child's preference for consideration by California divorce courts, state law requires that children 14 and older be provided an opportunity to address the court, unless it can be shown to not be in the child's best interest. The practical effect of this is that if your teenager is at least 14, she can typically participate in the process, regardless of whether her preference of custody or visitation is considered by the judge. This might include offering testimony regarding other best interest factors, such as the nature of each parent's living environment and the child's present needs.
In California, parents with an existing custody order may pursue a modification of the order if there has been a change in circumstances. In making this determination, the court must ensure that the modification suits the best interests of the child and will consider the same factors as those used in establishing custody, including the preference of the child if she is of a suitable age and competency. This might play a larger role than in the original custody determination if the child was not old enough at that time, but has since matured. But the child's preference is not necessarily controlling, and the amount of weight the judge gives the preference is always at his discretion.