Child's Preference in Child Custody

This issue has been discussed a lot lately in other blogs, South Carolina Family Law Blog and over at Updates in Michigan Family Law.

As Ben Stevens stated, "rarely does a week go by in which I am not asked the following question: How old does a child have to be before he can choose which parent he/she wants to live with? Put another way, what is the "magic age" when children are able to make a decision in custody cases?"

I too get this question a lot. Kansas does provide in K.S.A. §60-1610(3)(B)(iii) that the court shall consider "the desires of the child as to the child's custody or residency." Key word, consider.

Our Kansas Supreme Court in Greene v. Greene, 201 Kan. 701, 704, 443 P.2d 263 (1968), made the following statements about a child's preference in custody issues: "A child's preference in custody matters may, of course, be considered as an aid to the court in making a proper order. Such preference, however, is always subordinate to the over-all best interests and welfare of the child. Thus, when there are objective factors affecting the child's welfare that are contrary to his wishes, the latter must yield to the former."

In a nutshell, the court may listen to the child's wishes, but that is not the controlling factor. The primary consideration must be the best interest of the child. And even if the child says one thing, the court should not follow those wishes if it is contrary to the child's best interest.

In looking at the wishes of the child, the court should consider certain factors.

• Is the child old enough to have a preference.

• The relationship towards parents and siblings.

• Physical and mental health of the parents.

• Reasons for the preference

• Strength of the preference

• Hostility toward one of the parents.

The court also needs to evaluate the child's emotional state. The child may be experiencing loyalty conflicts, have a strong desire to please one parent, have a lot of repressed or not repressed anger at one parent or have age specific developmental conflicts.

To determine the child's preference, I don't believe the judge should put the child on the witness stand. Which does not happen for the most part. In fact, K.S.A. §60-1614 authorizes the judge to interview the child in chambers. This way, the child is not put into the situation where they have to pick which parent they would rather live with in open court.

In some cases, not all, the judge may order a custody evaluation where a third party may visit with the child alone to determine if there is a preference. This is also the opportunity for a mental health expert to determine if the factors mentioned above are present.

Again, as Ben Stevens states and I agree completely, "should there be a designate age at which children may make this decision? I believe that the answer clearly is "no." Why? Some of the reasons for my opinion are listed below:"

• Most children are simply not mature enough to consider all of the implications of a custody determination. Children love both of their parents, and if being candid, they would tell you that they want to live with both of their parents and not one vs. the other. To them, anything less can simply be unacceptable.

• Most children prefer to live in the least restrictive environment, and this is especially true with teenagers. If you were a fifteen year old, which of the following parents would you pick: Parent A who lets you come and go as you please, stay out until all hours of the night, not do chores around the house, and not put the proper emphasis on schoolwork, or Parent B who has strict rules with regard to all of those issues? Which of those households is more likely to help that child grow into a successful adult?

• Children are subject to improper influence by their parents or others. Unfortunately, a parent who is desperate to "win" a custody case will attempt to bribe a child to choose him/ her over the other parent. What young child would not be enticed (at least somewhat) by the lure of a shiny new video game system, motorcycle, or dance lessons? What if grandma or grandpa offers those items to the child if he "picks" a certain parent?

• Children do not want to upset their parents. In fact, it is not uncommon for children of conflicted divorces to begin to take on some parental responsibilities toward their parents. Could this desire not to hurt a parent's feelings or disappoint him/her lead a child to make a choice on that basis? Is that really in the child's best interest?

• Family Court judges will tell you that custody decisions are among the toughest decisions they must make. Why should we believe that a 10, 12, or 15 year old child should be able to address such a difficult issue? A child should never be put in that position or allowed to make such a difficult, often agonizing, decision.

While a child's preference should be considered, it is not the controlling factor for the court. The controlling factor must be and should always be the Best Interest of the Child.

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Divorce, Child Custody, Child's Preference

Comments

[Child Custody]

Do not overlook the fact that the attorney must be familiar to family law with experience of handling few cases. The law can create hurdles with numerous issues that you may come across while your case is running in the court. And at this time only an expert lawyer who has the exact knowledge can fend you. Another significant aspect is your comfort level with your lawyer. You must be easy in talking about your personal matters with your divorce lawyer. If you have children, they might suffer the most in the...

[tracy]

my soon to be 12 yr old son (the other will be turning 11)tells me all the time that he wants to live with me......what is the best age for a child to talk with the judge about his wishes?

I lost my two boys on stability. I have worked at same job for 3 yrs, married over a yr and own a house for almost a yr. Will that be satbility enough? The boys had good grades and missed maybe 1 day of school while in my care. I had them until 2 yrs ago.