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Child’s Preference in Visitation Cases

When can my child decide who (s)he will live with?   This question is one of the most frequently asked questions in my office, and the California Family Code answers it: “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.” FC§3042   A child’s participation must be considered on a case-by-case basis.  The Courts have found children ten (10) and thirteen (13) years old to be “very mature” and considered their input; while denying the request of a fourteen (14) year old, whose request was not supported by mature reasoning.  The Court wants parents to articulate the facts that justify the best custody and visitation schedule for the children.  Likewise, the Court expects children to articulate, with sound reasoning, why their input should be considered.   The Courts repeatedly instruct parents to keep “court issues” quiet and from sharing them with the children.  So parents, counselors, mediators, and attorneys each must balance the voice and desire of the child, with the instruction of the Court to keep the child “walled-off.”  Exposing children to “adult issues,” such as child custody and visitation proceedings, is seldom in the best interest of the child.  Communicating with a child about the proceedings, without speaking to the child about the issues is difficult.  I encourage clients to talk less and listen more; if there are legitimate issues that your child wants to bring to your attention,...

Domestic Violence and Child Custody

Few will disagree that domestic violence has a negative impact on the children of the parents who fight.  Although the majority agrees that one parent is usually the perpetrator of domestic violence, it does not mean that the other parent is most favorably advancing the child’s best interest.  Therefore, in cases where domestic violence has been alleged, it is important to exam both sides of the coin and obtain as much information about both sides of the story.   The Court will consider a case to be domestic violence related if, in the past five (5) years, one parent was convicted of domestic violence against the other, or if any court has decided that one parent committed domestic violence against the other.  Domestic violence occurs when a person intentionally or recklessly causes or attempts to cause bodily injury or sexual assault to the other, or places the other in a reasonable apprehension of immediate serious bodily injury.   If the Court concludes that domestic violence has occurred, there is a presumption that the perpetrator should not have sole or joint custody of the parties’ children.  The presumption may be overcome, although the Court cannot ignore the issue.  Factors rebutting the presumption include completion of a batterer’s treatment program or alcohol/drug abuse program, where applicable, completion of parenting classes, compliance with terms of parole or probation, and compliance with a protective order are a few.   Issues of domestic violence trump the importance of maintaining frequent and continual visits and the Court must make child custody and visitation orders based on all issues.  If domestic violence has been an issue...