Will the Court consider my child's preference regarding custody and parenting time?
This question gets asked often. Most times, it's in a case where the child lives with one parent but wants to live or spend more time with the other parent. So will and when does the Court consider your child's preference?
The preference of the child is one the statutory factors the Courts must consider when making a custody determination. (You can read more about the factors here). Despite the fact it's one of the statutory factors, there's a few things to know.
First, there is no magic age.
However, Courts are more willing to interview children that are 13 years or older. About 10 years ago, the Courts would interview children as young as ten. However, the Courts have realized that interviewing the children can put a lot of stress on the child by putting them in the middle and making them feel as if they have to choose betweern their parents. It's for that reason that Courts do not interview children as often as they use to.
Back in 2008, I worked for a Judge and he interviewed children pretty frequently. Anytime there was a request to change residential custody or to substantially increase parenting time. Now, the Courts tend to only do child interviews when there is a request to change residential custody and the parent asking to change custody has satisfied their initial legal burden to the Court.
It's also important to know that the Courts are more willing to interview older children. So you have a better chance of the Court interviewing your 16 and 17 year old child than of them interviewing your 13 or 14 year old. But that is not set in stone and different Courts and Judges have different views and preferences when it comes to interviewing children. The reason the Courts are sensitive to interviewing younger children is because they want to make sure the child is of an age where he or she can make rational decisions (i.e. not as easily influenced by either parent) and more importantly, can explain to the Court why they've made that decision.
Second, do not bring your child to Court with you unless the Judge has specifically ordered you to do so.
This is something that really angers the Judges. They do not interview children in every case and if the Court has not specifically told you they will interview your child, the Judge will be quite angry with you bringing your child to Court in hopes that the Judge will interview him or her. This is especially true during the school year. The Judges do not want children missing school for unnecessary reasons.
If a Judge decides to interview your child, he or she will schedule the interview late in the afternoon so your child does not miss school. You should also keep in mind that bringing your child with you to Court will be a waste of time for your child because he or she will not be permitted in the Courtroom either before or after your case. People under 18 are not permitted in the Courtrooms (except young children who are in there with their parents). But your teenager son or daughter will be required to wait in the waiting area. If you've been to Family Court before, you know you could be there for several hours. You definitely should make the argument to the Court that your child's preference should be considered and the Court should interview him or her and if the Judge agrees, a child interview will be scheduled on a late afternoon.
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The contents of this blog entry are provided for informational purposes only. You should consult with an attorney to determine how the law applies to the facts of your particular case. Reading this blog entry does not create an attorney-client relationship with Kelly McGriff Law.