Most cases involving child custody and the arrangements for children are resolved without the need for a trial. In the few cases where trial is required, one of the first questions a parent will ask is whether the children will be able to choose which parent they will live with.
Best Interests of the Children
When making a custody determination, the law requires the court to decide based on what is in the best interest of the children. The court doesn’t really care what the father wants to see happen, and the court doesn’t really care what the mother wants to see happen. Instead, what matters is what is best for the children, regardless of the parents’ desires.
There are several factors that the court will consider when making this decision, including the child’s preference. One of those factors is the reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference. That being said, the child’s preference is not the determining factor - in other words, the inquiry does not end with the child’s wants. The court still must consider all the other factors in fashioning a custody arrangement.
If a child is old enough and mature enough to make a reasonable decision about custody, then the court must consider that decision in making a custody determination. There is no specific age when a child is considered old enough and mature enough to make such a choice - this is a factual decision to be made by the court on a case-by-case basis. Courts have allowed children as young as 5 years old to testify about their custody preference.
The court can decide whether or not to consider a child’s preference by speaking with the child and determining whether he or she has an understanding of what it means to give an oath to tell the truth. The child also needs to be able to clearly state the facts the court needs to hear. The court will listen to the reasons behind the child’s preference when deciding whether to give the preference any weight, and will listen more to mature, well-reasoned opinions rather than opinions based on a temporary whim. The Court will also disregard superficial preferences, such as which parent lets the child to watch more television or has more lenient rules.
Again, just because the court hears from a child, that does not guarantee the custody arrangement will be consistent with that child’s preference. While it is one factor for the judge to consider, the court’s ultimate decision must always be based upon what is in the best interest of the child, which is not necessarily what the child wants.
Will My Child Testify in Court?
In any case, forcing the children to testify about custodial preferences in front of his or her parents more often than not is psychologically damaging. The court can take various precautions to ensure that custody proceedings don’t create more stress in an already difficult situation for the children.
The court will often interview children in Judge’s chambers to determine their custodial preferences. Normally, the court will ask for each parent’s permission to interview the children in chambers, outside of the parent’s presence. The attorneys may be present, but don’t generally ask questions during the interview. Instead, they can give a list of questions to the judge, who can then decide which questions to ask the children.
Alternatively, the judge may appoint a best interest attorney or guardian ad litem (attorney for the children) to represent the children’s interests. The guardian ad litem often submits a report to the court about what’s in the children’s best interests, including their preference for a custody arrangement. The guardian ad litem may also present arguments in court about the children’s preferences.
Lastly, the court may also allow a social worker or other mental health professional to testify about the children’s opinions on custody and, if they are an appropriate expert, what is in the children’s best interest.
Contact a Wayside Legal Child Custody Lawyer
Wayside Legal LLC is an award-winning law firm located in North Bethesda, Maryland, with years of experience handling child custody and visitation proceedings throughout the state. If you are facing a child custody case in Maryland where your child has stated a custody preference, contact a Wayside Legal attorney today for a consultation to discuss your specific situation.