DOES A CHILD’S PREFERENCE PLAY A ROLE IN CUSTODY

The wishes of a child can be an important factor in deciding custody. The weight a court gives the child’s wishes will depend on the child’s age, maturity, and quality of reasons. Some judges do not even listen to a child’s preferences under the age of seven and instead assume the child is too young to express an ill-formed appreciation. 

A court is more likely to follow an older child’s preferences, although the court will want to assess the quality of the child’s reasons. If a child wants to be with a parent who offers more freedom and less discipline, a judge is not likely to honor the preference. A child whose reasons are vague or whose answers seem coached may not have their preferences followed. 

On the other hand, if a child expresses a good reason related to the child’s best interest-such as genuinely feeling closer to one parent than the other, the court probably will follow the preference. Although most states treat a child’s wishes as only one factor to be considered, two states (Georgia and West Virginia) declare that a child of fourteen has an “absolute right” to choose the parent with whom the child will live, as long as the parent is fit. 

If a judge decides to talk with the child, the judge usually will do so in private, in the judge’s chambers rather than in open court. Generally, the parents are not in the room when the judge talks to the child, although the parents’ attorneys might be. In some cases, the judge may appoint a mental health professional, such as a psychiatrist, psychologist, or social worker, to talk to the child and report to the court. 

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