How Does a Child's Preference Affect Custody?
In most divorce cases, parents reach an agreement without having a judge decide which parent should care for the children on a day-to-day basis. In less than 5 percent of divorces, though, a judge will have the ultimate say on which parent will become the custodial parent. In this case, one of the first questions parents ask when it comes custody is whether the court will allow the child to choose which parent to live with. In most states the children don't have a choice, but in Georgia and West Virginia the courts allow children 14 years of age or older an "absolute" right to choose the custodial parent (as long as the judge deems the parent fit).
However, that doesn't mean that in most states the child has no say.
Best Interest of the Child Standard
All states have statutes requiring that the child's best interests be considered whenever specific types of decisions are made regarding a child's custody or placement. Most state statutes list the factors that guide courts in determining the best interest of the child. While these factors vary from state to state, the most common factors are as follows:
- Wishes of the child's parent.
- Relationship of the child with each parent.
- Ability of each parent to provide adequate food, clothing, shelter, medical care and a safe environment.
- Ability to meet the child's current and future developmental needs.
- Mental and physical health of all those involved.
- Quality of the child's adjustment to the child's school and community and the potential effect of any change.
- Ability and disposition of each parent to foster a positive relationship and continuing contact with the other parent.
- Child's relationship with any other person who may significantly affect the child.
- Ability of the parents to communicate and cooperate with each other.
- Any evidence of abuse.
In addition to the above factors, thirty-three states have added a child preference factor, as long as the judge determines the child is "of sufficient age and capacity" to communicate their preference regarding who they want to live with. For example, Florida's custody statute states:
Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to:
(i) (i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
Indiana and Utah also have the additional factor of considering the child's wishes; however courts in both states give more consideration to the child's wishes if the child is at least 14 years of age.
The reasonable preference of the child is also taken into consideration in Mississippi, Oklahoma, and Tennessee if the child is 12 years of age or older.
Two states, Ohio and Kansas have enacted statutes that specifically require and/or allow the court to actually interview the child in chambers regarding their wishes and concerns with regard to their preference of a custodial parent.
While Wyoming has no statute specifically requiring courts to consider the child's preference in determining what is in the best interest of the child, the statute allows courts to go beyond the list of statutory best interest factors when determining what would be in the best interest of the child. This allows judges there discriminatory authority in deciding whether or not they will consider the child's wishes on a case-by-case basis.
| States | Child Preference? |
|---|---|
| Georgia, West Virginia | Yes If child is 14 or older, child has the right to choose the custodial parent. |
| California | Yes If the child is 14 or older, child has the right to testify in court regarding the preference of custodial parent. |
| Indiana, Utah | Yes If the child is 14 or older, the judge may consider the wishes of the child. |
| Mississippi, Oklahoma, Tennessee | Yes If the child is 12 or older, the judge may consider the wishes of the child. |
| Alaska, Alabama, Arkansas, Arizona, Colorado, Connecticut, Delaware, Florida, Hawaii, Iowa, Idaho, Illinois, Kentucky, Louisiana, Massachusetts, Maryland, Maine, Michigan, Minnesota, Missouri, Montana, North Dakota, Nebraska, New Hampshire, New Jersey, new Mexico, Pennsylvania, Rhode Island, South Dakota, South Carolina, Virginia, Washington, Wisconsin | Yes The judge may consider the wishes of the child as long as the judge determines that the child is "of sufficient age and capacity." |
| Wyoming | Yes Wyoming law leaves it completely up to the judge whether he/she will consider the wishes of the child. |
| Vermont | No Children's preferences are not considered in custody determinations. |
It is important to note here that while the court may consider a child's preference as to where he or she wants to live, uniformity is lacking when it comes to the degree of weight the child's preference has, or even if the judge chooses to take the child's preference into consideration at all. The latitude judges take in considering the child's wishes can vary greatly from state to state, county to county, and even court to court. In Michigan, judges have almost limitless latitude in deciding whether they will take a child's preference into consideration, and in deciding how much weight that preference will be given. However, every case is fact-driven and the particular circumstances of the family's overall situation will matter just as much or sometimes more than the child's preference. In contrast, according to the Oregon State Bar Association, most courts there are reluctant to consider the wishes of the child at all. Although the age of the child and the reasons expressed for choosing one parent over the other determine how much weight judges give to a child's preference, when determining the best interest of the child, judges in Oregon will tend to give more weight to the testimony of expert witnesses, such as psychologists, social workers, teachers, counselors, custody evaluators, or psychiatrists.
California's Answer to Lack of Uniformity in Considering Children's Preference
In 2008, the California Supreme Court created the Elkin's Family Law Task Force to conduct a two-year review of how couples, parents, and children were treated in family law cases throughout California courts. The findings of the task force revealed that children weren't being heard in the court system and that methods for interviewing children to determine their wishes with regard to a custodial parent were inconsistent and ineffective.
As a result, in 2012, California enacted a new law that not only requires the court to "consider and give due weight to, the wishes of the child," it also gives children over the age of 14 the right to testify in custody hearings. Children under the age of 14 can testify in a custody hearing as long as the judge determines that it is appropriate and in that child's best interest. The law also accommodates children who do not wish to testify by requiring the court to provide an alternative means of obtaining both input from the child and other information regarding the child's preference.
Vermont: The Opposite of California
In Vermont, the statutes do not allow children to express a preference for which parent they want to live with at any time. According to the Vermont Judiciary's Parental Rights and Responsibilities pamphlet, "[t]he law actually discourages the testimony of minor children. Before a child may testify, a Guardian ad Litem must be appointed for the child and a hearing must be held to determine whether the testimony of the child is necessary. If the testimony of the child is found to be necessary, a lawyer must be appointed for that child."
The Role of the Guardian ad Litem
A Guardian Ad Litem is a trained volunteer (usually an attorney, psychologist, or social worker) who will represent the best interest of the child and report to the court as to what arrangements might be in their best interest. However, the Guardian Ad Litem cannot be a witness in court.
The Guardian Ad Litem receives an Order of Appointment from the court which identifies the issues he or she should investigate. In Oklahoma, if a child under the age of 12 has a strong preference for his or her custodial parent, the parent can request the Guardian Ad Litem to investigate the child's preference and to help the judge determine what is in the child's best interest.
While the findings of the Guardian Ad Litem are valued by the court, their recommendations are not binding. As a practical matter, however, courts often follow the GAL's recommendations.
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