Understanding the Child’s Preferences in a Custody Dispute 

When it comes to child custody disputes, the child’s best interests must always be at the forefront. It’s common to be very anxious during this dispute, and it leads many parents to wonder whether or not their child’s preferences will factor into the custody outcome. The key is to ensure that the court carefully addresses the child’s preferences because you don’t want them dragged into the litigation process unless it’s a last resort. If your child must get involved in this process, a framework outlines when it is and isn’t appropriate. We’ll go over this below.

Child’s Capacity and Age

The court can’t require a child of any age to testify. In fact, up until a few years ago, it was not common for the courts to give children the option to testify. However, in many states, a child at least 14 years old with the mental capacity may testify as to which custodial preference they prefer unless the court decides that this choice isn’t in the child’s best interest.

Children who fall below the set age threshold for that particular state may only be allowed to testify if the court determines that being able to do so is in their best interests.

Determining Best Interest

When it’s time to decide if testifying is in the child’s best interest, the presiding judicial officer (a family law commissioner or a judge) has to consider several factors. These factors include but may not be limited to:

Determining the Child’s Level of Desire to Address the Court

In custody, either party has the power to inform the court about the child’s desire to get up and address the court. Additionally, the presiding judge or family law commissioner can ask about the child’s desire, but they’re not required to do so.

Suppose a recommending mediator, minor’s counsel, or a child custody evaluator is involved in the custody dispute. In that case, they have a legal obligation to let the court know any custody preferences that the child has. They’re also legally obligated to inform the court of the child’s desire to address the court.

How the Court Takes the Child’s Testimony

The court may decide that it is in the child’s best interest to testify and that the child in question has the emotional and intellectual capacity to articulate their preference. In that case, there are a few ways to present the child’s wishes to the court. These ways are much less emotionally draining and difficult than open testimony.

The child could speak to the judge in their chambers or private office with a court reporter present to help create a record of the child’s testimony. They may also speak privately with the minor’s counsel, recommending mediator, or child custody evaluator. The Family Court is very aware of the negative impact that testifying can have on a child as a whole, and they try to secure the child’s preference and input in the way that is least likely to cause distress or harm.

Impact the Child’s Preference Can Have on Custody Determination

Most courts will have to consider the child’s wishes as long as the child has the capacity to form an intelligent preference as to which parental figure they’d prefer to live with. The court will also consider which party’s placement will be in the child’s best interests, especially if the child is over 14 years old.

However, the court will also consider the child’s sincerity and maturity levels. They’ll look for evidence of conditioning, emotional pressure, or any other influence that one parent or party may have intentionally or unintentionally exerted. They will also look at the child’s attitude and the nature of the child’s relationship with the other parent.

Contact Our Law Office for a Consultation

Contact us if you have questions about an upcoming or current child custody dispute. Our experienced team is happy to set up a consultation and outline your child’s rights, as well as what factors go into determining your child’s best interests to help prepare for the best possible outcome for all parties involved in the custody dispute.