The Reasonable Preference of the Child in Custody Cases

By: Henry Gornbein
Last Update: October 20, 2016

In child custody cases, one of the 12 factors that must be considered is MCLA 722.23(i) – the reasonable preference of the child. In this article, I will be discussing the realities of the application of this statute from a family court judge’s perspective.

I recently spoke on this issue at the Michigan Chapter of the American Academy of Matrimonial Lawyers (AAML) Seminar.

The law requires that a judge talk to the child or children where there is a child custody dispute in order to help make a determination consistent with the best interests of the child.

Key cases on this issue include Molloy v. Molloy, 247 Mich. App. 595 (2001), which stands for the proposition that camera interviews of children in custody disputes are proper and serve a public purpose in not allowing a child to be cross-examined. In addition, the law now requires that all interviews be recorded in some fashion and sealed to protect the privacy of the child but also to provide some sort of record for possible appellate review.

In Maier v. Maier, 311 Mich. App. 218 (2015), the court declined to interview an eight-year-old child and this was upheld by the Court of Appeals. Here the child had been coached by one parent and had also gone through a lot of emotional trauma, including four unsubstantiated Child Protective Services evaluations. The court determined that the eight-year-old child would not be able to state a reasonable preference.

In Breneman v. Breneman, 92 Mich. App. 336 (1979), an 11-year-old was allowed to testify regarding child abuse allegations involving one of the parents.

In Thompson v. Thompson, 261 Mich. App, 353 (2004), the court discussed whether a judge can go beyond the scope of the child’s preference. The key is that an interview cannot be conducted in a vacuum but that the interview should not be used to determine any of the other 11 factors of the best interests statute.

In preparation for my presentation to the AAML Seminar, I sent a form survey with nine questions to each of the family court judges in Wayne, Oakland, and Macomb counties.

My goal was to obtain and provide a view of what happens behind the scenes where no one is present except the child, the judge, and, in most cases, another person connected with the court and gain some insight into the judges’ decision-making process in these difficult cases.

Of the 23 judges, 14 provided written responses and one declined to participate. I would like to share my findings of this unscientific survey with you, which reflect the judges’ actual comments and statements:

Question 1: What is the youngest age that you will talk to the child?

Answers: Ages ranged from four years of age to 10 or 11 years of age, with the majority saying five or six years of age. One judge responded by saying, “Only children who know the difference between telling the truth and telling a lie,” but never recalled having an interview with a preschool-aged child.

Question 2: Do you have any other person present when you interview a child?

Answers: Nine judges said they always have someone present when they do the interview. One judge stated they do not but do make a video record of the interview. One judge said, “Usually not.”

Question 3: If so, who is with you?

Answers: The answers ranged from “my court reporter” to “members of my staff, my clerk or GAL, research attorney, family counselor, or a GAL.” In some cases, it was a secretary who would takes notes for the confidential court file. Or, according to one judge, it could be a deputy if the judge was worried about safety due to the child’s age, size, or mental health status.

Question 4: Are there any specific questions that you ask a child?

Answers: There was a wide variety of responses, including questions to “break the ice,” and general life questions. One judge responded that he or she would explain that “it is my job to help your parents when they don’t agree.” One response was that there would be four to five questions to establish the child’s ability. There were also general questions about home, school, and family as well as about age, grade, and other basic information. One response was, “General questions to determine reasonable preference,” and also, “Do you know why you are here?” to get the rehearsed stuff out of the way. Two judges responded “No.”

Question 5: If so, what are they?

Specific answers included the following:

“Where do you go to school? How are your grades? Do you play sports? Clubs/activities? I also explain why we are here talking.”

“Can you accept what I decide? Is there anything you want me to consider before I make a decision?”

“Tell me the good things about each parent, whether there is anything they want to tell me, and whether there is anything I can help them with.”

“Name, age, pets, livings arrangements, school, friends, siblings, music, sports, arts, video games – how are things going.”

“What would you like to know about what’s going on? What do you think I need to know to make a good decision?”

“I ask the child if she/he knows the difference between telling the truth and a lie. I also ask to tell me 'anything special.' If I believe the child hasn’t been coached, I will ask their preference. Most children/teenagers want the process over quickly.”

“Do you know why you are here? What do you like best/least about being at mom/dad’s? What else did mom and dad tell you to tell me?”

“What do they do at each parent’s home? Who do they go to with their problems and successes? Who picks them up from school when they are sick?”

“How do they like living with mom and dad? What types of activities do they do at each home? How do they like spending time with mom or dad?”

“I always ask them to tell me one thing they like about each parent.”

“Who lives at mom/dad’s house? How do you get along with everyone there? What do you do for fun there? Discipline? Schoolwork? Do you have your own bedroom? What activities do you like to do? Who does them with you? Is there anything else you 'are supposed' to tell me?”

“Who gets you up in the morning; prepares breakfast; gets you to school; gets you home; helps with homework; goes to soccer/baseball? What are your chores; nighttime routine; bedtime; weekends?”

Question 6: Do you ever ask a child to state his or her preference?

Answers: “Always, but rephrase it as, 'If you could live anywhere you want, or have any schedule with your parents, what would it be?'”

“Not in those words. I ask open-ended questions.”

“Depending on the age of the child. I reassure them their response is confidential and won’t be disclosed, but I have to follow the law and might not do exactly what they say they want.”

“Not directly. I don’t make them choose.”

“Yes – not in those words. Usually, 'In a perfect world, where would you like to go to school/want your schedule to be?'”

“Yes. The issue then becomes for the court to determine whether the child is mature enough to express a helpful opinion.”

“Sometimes – but usually they don’t want to be responsible for the decision. I let them know I’m helping mom and dad decide how much time at each home.”

Most of the time, but not in a direct way. I may ask if they got to make the decision, where would they spend their time?

“Yes – if mature enough to understand the nature of our discussion.”

“Yes, in a round-about way. Not directly.”

Question 7: At what age does a child’s preference carry significant weight in your decision-making process?

Answers: “Depending on what the child tells me, it may not matter – but usually nine or 10.”

“Older than 10, depending on child and maturity.”

“Depends on child’s maturity level – typically age 12 and up.”

“It varies. Generally 12 or older carries more weight.”

“15-16”

One judge said between “the ages of 15-17.”

“As a general rule, the older the better – but maturity is a big factor.”

“It depends on the child.”

“Child’s developmental stage and ability to understand and communicate their preference is far more important.”

“As the child ages, she or he has better ability to express a preference that is useful to the court.”

“Depends on age and maturity.”

“Many factors are considered. You may have children who have been alienated by one parent, so age is less important than circumstances sometimes.”

Question 8: How important is the preference of a teenager?

Answers: “Significant, especially if the teenager is able to articulate solid reasons for their preference.”

“Pretty important – but one must remember the incentives at the different homes – i.e. girlfriend/boyfriend, staying out late, driving, cell phone, freedom, etc.”

“Carries more weight than younger children but cautious about the true reasons – i.e., is one parent more lenient, boyfriend/girlfriend, etc.”

“Depends entirely on the child and the situation.”

“Very significant, as long as they seem to be speaking their own mind.”

“Every family presents a unique set of circumstances. The older the child, the better the child’s ability to express a preference.”

“Depends on age and maturity.”

“Very important.”

“Significant, but I try to discern if there is coaching and/or if the child’s preference is for reasons in the child’s best interest.”

“Preference is considered and weighed in conjunction with other best interest factors.”

“Always considered, but it is truly only one factor.”

“Very important.”

“Depends on the situation – if a discipline  issue results in a child wanting to live with the other parent due to leniency, then it’s not that relevant.”

Question 9: Is there anything else that you can add that would be of importance or of interest to our seminar audience?

Answers: “Don’t coach the kids ahead of time. It’s not hard to figure out which parent is 'coaching' the kid.”

“Always interview children alone, not with their siblings.”

“I always video record the interview.”

“I can’t determine what is in the child’s best interest if I don’t know them. The purpose of the interview is to get to know them, learn about what I need to know, and help the parties settle the case.”

“Children rarely say what their parents think they will – they are usually very direct.”

“I only interview the child after all the testimony is complete to help provide better insight to the child’s response. Also, don’t be shy to ask the court or staff about details of the interviews, but limit discussions with the child to the very basics of who they will meet, where it will occur, and when.”

“Most children don’t want to choose, and just want their parents to stop fighting.”

“Interviews are case- and child-specific.”

“Always inform the children that the interviews are confidential.”

“I always tell children that I make the decision so they don’t feel something they did or said is why they live with one parent or the other.”

“Many times it is apparent that a child has been coached. It is not helpful to the 'coaching' parent. Once, I asked a child if there was anything else he was 'supposed' to tell me… He ticked off all his points on his fingers to make sure he covered them all!”

In sum, I found this survey and the judges’ responses and comments to be fascinating and very informative.

In closing, I remember a judge telling me a number of years ago that he did not care how old the child was, he was not going to allow a teenager to tell him how to run his courtroom. A reminder to us all of the challenging and difficult job each family court judge is faced with in a custody case when tasked with determining the reasonable preference of the child.

These are some of my thoughts along with 14 of our esteemed family court judges.


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