In most jurisdictions, the primary standard that the courts use in determining custody of children is what custodial schedule is in the “best interests of the children.” The courts often consider a variety of factors when determining the best interests of the children. One of the factors that the courts consider is the children’s preference or wishes for their custodial schedule. While most states simply won’t allow the child’s preference to control over all other factors, many courts are required to recognize a child’s preference, and will give their preference consideration when making its custody determination. The weight given to a child’s preference will often vary depending on the age, cognitive ability, maturity, and basis given for a child’s preference. For instance, the court may give significant weight to the expressed preference of a 14-year old child who is able to state his or her preference, and provide valid reasons why he or she wishes to have a specific custodial schedule. On the other hand, the court may give less weight to the preference of a 6-year old child who is not able to provide reasons or even understand what he or she is being asked as far as a custody schedule is concerned.
Additionally, courts will often vary on how a child’s custodial preference is presented for consideration. Many courts are very reluctant to have a child testify in open court in a custody.
dispute regarding their preference. If they do allow testimony, the courts are usually given wide discretion to control the circumstances of the testimony (i.e. having testimony recorded in chambers or in a private setting in the courtroom). In many cases, courts will appoint an attorney to represent the children’s interests in a custody case, and charge the attorney with ascertaining the child’s preference and reporting that preference to the court. Another option available to the courts is to order the parties to submit to a child custody evaluation, with either a court-connected evaluator or a private evaluator, who is charged with interviewing the children and reporting to the court his or her custodial preference as a part of the overall evaluation process.
Todd Coulston is a partner at The Law Offices of Burch & Coulston LLP servicing Orange County, Los Angeles County and Southern California. He is a member of the State Bar of California, the American Bar Association, Orange County Bar Association, and the Family Law Section of the Orange County Bar Association.