A Child’s Preference in Custody Case
(Provided by How to Win Child Custody)

If your children are ten or older, the court may ask them questions to help find out which parent they would prefer to live with. Courts will consider the preference of a truthful and verbal older child. Maturity and general intelligence are important factors in determining how much weight the court will give the opinion.

The question shouldn’t be asked directly to put the child in a bind by having to choose between two parents. Nor should your child have to testify from the witness stand. This process is best handled informally in the judge’s chamber with the lawyers and court reporter present. What’s best for your children may not sit well with you or your spouse. You will be excluded when the most important evidence is given.

If your child has a strong preference, it will come out with indirect questioning. The reasons for the preference are generally more important than the preference itself. If the reasons appear to be contrived or nonexistent, the judge isn’t going feel bound by the opinion and may even suspect a parent put the child up to it. If the reasons make sense, the judge is influenced by the reasons and the deliberation of the child in forming the preference.

Case Scenario:

Kathy was unprepared when the judge asked her ten-year-old son who he wanted to live with. She was jolted when her boy said Dad, and the judge gave her son to her ex-husband, Dan. This was a post-judgment motion, not a temporary order. Her son had lived with her for the last four years with no problems.

The timing of the hearing hurt Kathy. The request for the change of custody was heard at the end of the two-month summer period their son spent with Dan. Of course, Dan’s attorney had scheduled it at the end of the summer because of that. Neither parent was perfect, but neither was unfit either. The hearing could have been continued for an evaluation while Kathy’s son came back, as he was supposed to, and lived with her and attended the same school. While the judge would have been less likely to make a change during the school year, that’s only a minor point.

The result could easily be different. Kathy’s son wouldn’t want a change. The judge wouldn’t want a change. Kathy’s son didn’t seem ready to form a mature preference. The two months with his father were like a trip to Disneyland, doing everything and going everywhere he wanted. He did nothing around the home, perhaps because he was busy being indoctrinated for the custody hearing. He was told all summer he would go to school and live there from now on. His preference probably would have changed back after being with his friends and mother for as long as he had been with his father, two months.

The early years, ten and eleven, are difficult to judge. Is the child mature enough to form a preference? Has the child been influenced by recent events such as gifts, promises or coaxing? Courts may be asking these questions of children too young to be capable of knowing which parent they want to live with.

When your children reach their teens, the judge will give more weight to their preferences. For example, a judge sees as entirely natural a fourteen year-old boy’s preference to live with his father. By the time children are fifteen or sixteen, a judge rarely orders them to live with a parent other than the one they prefer. The court doesn’t want to add to the difficulties by making an order that motivates your child to run away.

Information provided by:
How to Win Child Custody