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How Courts Consider the Child's Wishes in a Child Custody Decisions

When a court must make child custody and visitation decisions in a divorce case, even if the task simply involves reviewing an agreed-upon plan proposed by the parents, the court must decide what arrangements are in the best interest of the child. Courts must review a number of factors. In many states, the child's preference may be considered, but in most states, an expressed preference is not controlling.

Child custody has two components. Legal custody involves how decisions will be made regarding education, religious and major health issues. Physical custody involves establishing the primary residence of the child and visitation provisions for the non-custodial parent. If and when the law allows a child to state a preference, the input is generally limited to physical custody.

The law in every state is that a child cannot unilaterally choose which parent with whom he or she will live. There is not a magic age at which the child's decision controls. While a couple of states allow a child of 14 or older to make the choice, the decision is still subject to the court finding the preferred parent fit.

More than 30 state laws include a provision allowing the court to consider the child's preference. However, the procedure for getting a child's input, the age at which the child's opinion is deemed useful and weight to be given to the stated preference vary between states, and may even differ between counties within the same state.

General Custody Factors

Each state has enacted laws outlining specific factors a court should consider when making child custody and visitation decisions. These generally include the wishes of the parents, the relationship of the child to each parent and siblings, the ability of a parent to provide adequate shelter and care and the ability of the parent to meet the child's current and future developmental needs.

Other factors typically include the ability of parents to communicate and cooperate, the willingness of a parent to foster a positive relationship between the child and the other parent, the mental and physical health of all involved, any history of abuse and the potential effect a custody decision will have on a child's community and school involvement.

No factor is given more weight than another. A court must usually decide based on statements of the parents, reports from parenting investigators and witness testimony when a trial is held.

The Child Preference Factor

At least 33 states allow judges to consider the child's preference regarding child custody, but only after the judge first determines that the child is mature enough to communicate a preference and the reasons for it. For example, Title 9 of New Jersey law allows the court to consider "the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision."

Many states do not designate a specific age. For those that have adopted an age, it often varies between 12 and 14. In Texas, Mississippi, Oklahoma and Tennessee, the child must be at last 12 years old before the court will consider a stated preference. Indiana, New Mexico and Utah laws provide that a court will give greater consideration to the wishes of children age 14 and older.

Georgia, Illinois and West Virginia take the strongest approach by providing that children 14 years of age and older have an almost-absolute right to choose the custodial parent. However, the court must deem that parent to be fit.

State laws that do not explicitly list the child's preference as a factor often include language allowing a judge to consider "any other factor" deemed relevant. Under this catch-all provision, the court can usually consider the child's preference.

How the Child's Preference is Made Known

Many courts, at least in the early stages of a divorce proceeding, will base decisions on written affidavits and declarations that accompany motions for temporary orders. In theory, a child could state preferred custodial provisions in writing. However, a written document does not allow a judge to adequately determine the maturity and capacity of the child nor if the stated preference is well reasoned.

Some state laws provide that the child may appear before a judge in person. For example, California law requires a judge to allow a child who is 14 years of age or older to address the court if the child requests the opportunity, unless the court determines that doing so would not be in the child's best interest.

Typically, states that allow a court to consider a child's preference do not specify a set procedure through which the preference may be stated. It is generally up to the judge to decide if the testimony will be taken in open court. To reduce the emotional stress of having to speak in front of the parents, a judge may choose to interview a child in chambers.

More commonly, courts will rely upon the recommendations of a neutral third party such as a custody investigator, psychologist or guardian ad litem. These specially trained professionals speak to a child face-to-face, often as part of a comprehensive effort to obtain a full picture of the family dynamics. A written report is provided to the court and may include information regarding the child's parental preference.

In summary, until a child reaches the age of 18, decisions about a child's residence will be made by parents or a court. A child is obligated to follow a court's parenting plan if one is in effect. The majority of states recognize that a child's input into custody decisions can be important particularly as the child reaches teen years. However, a stated preference is typically only one factor of many that must be considered to determine what residential arrangements are in the child's best interest. Since laws vary by state, consultation with a local attorney is advised for anyone dealing with custody and visitation issues. If you have any questions regarding child custody, call the Law Offices of Peter Van Aulen at (201) 845-7400 for a free consultation.

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