Child Custody Factor #9: The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
Although a mature child’s wishes may be considered by the court in a divorce, paternity or modification of child custody case, they are not controlling. The Court still needs to determine whether the child’s wishes are in the child’s best interests.
For a parent litigating a contested child custody case that desires a child’s opinion to be heard, the first step is to prove that the child has the intelligence and understanding to be able to formulate a reasonable preference. This can be done is several manners. The child’s age is often considered. An infant or very young child is likely deemed to be too young to understand and an older child of 16 or 17 with average intelligence is typically deemed capable of being able to understand their family dynamics. If a child’s understanding is in question, a professional such as a child therapist can be utilized to make an assessment.
If a child has a child custody preference without good reason, the Court can choose not to honor the child’s preference. If a child desires to spend his or her time mainly with one parent, but then it is shown that the child prefers staying with that parent because the parent is not as strict with homework or lets the child stay out to unreasonable hours, then the Court could reject the child’s preference.
Many judges and parents prefer not to bring children into the courtroom. There are alternative options to be able to have a child’s preference heard without bringing the child into a Family Courtroom. A guardian ad litem is a person appointed by the Family Court to protect the interests of the child that speaks with the child as part of an investigation, writes a report to the Family Court and testifies in your contested child custody case. There is also an option of obtaining a Court order for a social investigation where a mental health professional can meet with a child as part of an investigation and prepare a report for the Court. For older and very mature children, the Court will consider permitting the child to come into the Family Court and testify.
Please also review the blog of Rebekah Brown-Wiseman for other factors that Judges consider for divorce, paternity and modification of child custody cases.