A Child’s Wish: How Does a Child’s Preference Factor Into the Court Awarding Custody?September 3, 2020
Since the beginning of time, custody practitioners have been asked by clients or prospective clients, “what about what my child wants? Won’t the Court listen to them?” How old do they have to be for the Court to listen to them and give them what they want?”
There tends to be a misconception that if the child wishes to live with one parent or another, that is ultimately what the Court will order. Spoiler alert: it is not true that the child can decide.
Pennsylvania law provides insight into this inquiry. 23 Pa.C.S. Section 5328 lists sixteen (16) custody factors the Court must consider in determining the best interest of the child. Factor seven (7) is “[t]he well-reasoned preference of the child, based upon the child’s maturity and judgment.” Section 5328(a)(7).
Typically, during the litigation process, the Court will examine the child in camera. In camera means in the Judge’s chambers without parents present. Depending upon the Judge’s preference, attorneys may not be present and a transcriptionist may not be present. The purpose is to encourage the child to speak truthfully without fear of repercussions. I have had the privilege of being present for in camera interviews of children throughout the course of custody litigation. Some Judges do not perform in camera interviews of the child(ren); rather a guardian ad litem (GAL) is appointed to represent the child’s interest to inform the Court of the child’s well-reasoned preference. Regardless of the practice of the Judge, the sole purpose is to seek answers to factor (7).
So, how does the Court determine during the interview if the child’s preference is well-reasoned? By asking the child(ren) questions, such as “what do you like about living with Parent A? What do you not like about living with Parent A? What do you like about living with Parent B? What do you not like about living with Parent B? If you could change anything about living with Parent A, what would it be? If you could change anything about living with Parent B, what would it be?” These benign, non-probing questions that are equally asked about both parents can provide significant insight as to the child’s rationale. If the child answers that they prefer one parent’s house over another because they can play video games, not have to attend school, not have to perform chores, can eat ice cream for every meal, are left home alone to watch what they want or do what they want, this may not be considered a “well-reasoned” preference. Obviously, the child may prefer that house because they have more freedom and can do as they wish without consequences. An example of a well-reasoned preference may be that the child prefers one parent’s house over another because they having meals together, cook together, get assistance with school work, are tucked in at night, are read to, are hugged and can participate in clubs or sports. I clearly have used two (2) extreme examples to illustrate my point. In essence, the Court is looking to ensure the child has a preference for the right reason.
Is there a magic age after which a child is automatically considered to be mature enough to have a well-reasoned preference? No. A child does not reach the age of 10 or 12 and automatically have a voice. There are very mature 9 year-olds who are able to articulate their preference, and there are immature 15 year-olds who cannot articulate their preference. There is no bright line rule, and this is another example of: “age is just a number”.
Calling children as witnesses, or involving children in custody litigation can be quite tricky. Please contact us for a consultation.