In every custody case, a judge must consider 16 factors when making a decision. Many factors involve the relationship of the child with each parent and the parents’ relationship with each other. “The well reasoned preference of the child” is one of the factors. This of course makes parents wonder: can my child choose where she will live, and how old does she have to be to make that choice? There is unfortunately no single answer to these questions. Your child’s preference may not carry much weight or it may be what sways the judge. How much weight a judge gives your child’s preference will depend on several factors.
Is it true my child can choose where to live?
The first thing I tell clients is their child’s preference is only one factor out of 16. The 16 factors are not weighted, and your child’s preference is not inherently a better factor than others. Judges can and do go against the child’s preference all the time depending on the circumstances.
A judge will not make a child choose between her parents. When judges interview children, they do not say “tell me where you want to live.” Instead, they will primarily ask your children about how they’re doing in school, what their interests are, and about their relationships with their parents. This doesn’t mean they don’t care about how your child views the custody arrangement! Judges do ask children if they like how much time they spend with each parent, and if they would like something different.
Just because your child wants to change the custody schedule does not mean a judge will ultimately do so. Instead, the judge will consider her preference in the context of all 16 factors. For example, a child may say she wants to spend equal amounts of time with both parents. This is quite common and something judges often support. It is hard to do so though, if the parents live 90 minutes apart. Although the child may want to spend equal time, it simply is not feasible. This does not mean the judge didn’t listen to her. Instead, it means her preference cannot control under the circumstances.
If you consider your child’s viewpoint in the context of the custody factors, it makes sense why it isn’t the sole factor. The judge does not want your child to decide who is more likely to attend to her needs, or who is more likely to involve the other parent. These are, however, factors which a judge is required to consider in making her decision. It is not your child’s responsibility to determine whether one parent is “better” than the other, and a judge will not place that pressure upon her. Instead, the judge will listen to your child to help understand how she experiences the current custody arrangement.
Does my child’s age make a difference?
Many parents believe the older their child is, the more weight her opinion carries. There is, in fact, some truth to this. A 16 year old is able to express herself far more easily than a 6 year old. There is also a belief among attorneys and judges that forcing too much custody onto an older teenager can ultimately backfire. I always tell my clients that ultimately you want to have your child choose to spend time with you when there is no longer a custody order.
A child’s age affects her ability to express a “well-reasoned preference.” Let’s look at some examples involving a parent relocating with the child to Florida. A young child may say she doesn’t want to move because she would miss the snow. And older child though may say that she is halfway through high school and is too involved in her life here. Both children say they don’t want to move, but the older child expresses concrete reasons for her opinion. Judges have different opinions on whether children should speak. Some judges interview a child even as young as 5. Others decline to do so until the child is older. Whether your child is interviewed or not depends on the judge and the specific circumstances. In general though, the older your child is, the more likely a judge will want to meet her.
When judges do speak with young children, they use it as an opportunity to learn about each parent’s household. Your child can tell the judge what she likes, whether she feels safe, and whether she feels comfortable. She can also tell the judge if she thinks she spends “enough” time with both parents. The judge can learn a lot about your household from speaking with your child.
Other considerations
Usually when a parent asks for the judge to speak with their child, it’s because they believe the child supports their position. It’s important to consider your child’s personality and maturity level in making this request. After thinking carefully, you may realize she just isn’t ready to express a preference. You should also remember that your child is still acting as a witness. As a matter of practice, you do not want to call a witness unless you’re sure the witness will help. Even positive answers can work against you. I have seen children repeat to a judge word for word what is in their parent’s pre-trial statement! While this may sound helpful, all it does is make the judge believe the parent coached the child. This is not the impression you want the judge to have!
Although it is only one factor, judges can and do take your child’s viewpoint into consideration when making a custody determination. Before asking for your child to speak with the judge, talk with your custody lawyer first. Your lawyer can help you articulate what you believe your child’s preference to be and why you believe she has a preference. This in turn, will help you prepare a more effective case for your trial.
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