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Preference of Child in Custody Determinations

Nov. 11, 2012

In awarding or modifying custody, one of the factors considered by a court is the preference of a child, However, the extent to which the court will consider an expressed wish and how much weight the court will give that wish depends on the age and maturity of the child and the circumstances under which the choice was made.

When Preferences Are Given Little Weight

As a rule, children love both of their parents and one of the most difficult decisions for the child to make is whether to live with one parent rather than the other. Children want both parents to live together, and they want to live with both of them. No court wants to place a child in the position of choosing, and courts often ignore or give very little weight to an expressed preference, particularly when the child is very young. Some courts will not permit the child to testify as to a preference. One reason is that the court may be concerned that the child has been coached. Where the child is living with one parent prior to a court hearing, not only the parent, but the parent’s relatives all too often seek to sway the child. It is for the court to determine what is in the child’s best interests in deciding custody regardless of the stated preference of the child.

When Preferences Are Considered

As a child grows older and begins to form independent decisions, the court will listen to the child to find out which parent, if either, the child would prefer to live with and the reasons the child gives for that desire. A child might want to live with a parent because that parent has been the primary caretaker during the course of the marriage. A daughter may want to live with a father because the mother and daughter are constantly battling and the daughter feels closer to the father. On the other hand, a child might want to live in the house that is bigger, has more expensive toys, and the parent is wealthier, but if that parent works excessive hours and is not available for the child, the court could deny the request. A child may want to change schools because of the difficulty of the school program or because of the type of students. Before a court grants the request, the court is required to determine what is best for the child.

Where a child has reached the age where the child may petition the court for a change in custody, courts often grant the child’s wishes. However, the request will be denied if the person the child chooses to live with is abusive or violent, or where there is clear evidence that the choice is not in the best interests of the child.