Modification of a Custody Order: Part 14 – The Wishes of the Child continued
In this post we pick up with our discussion of the preferences of a child in determining custody. As I mentioned last time, this is not always a black and white issue for a number of reasons.
A child’s preference regarding which parent he or she would like to live with is a factor to be considered in determining custody. But although the wishes of a child are a factor “to be explored,” they should not be considered “determinative.” A court must consider the child’s maturity and the reasons for their preferences in determining what weight to give to the child’s preferences.
Needless to say, case law on this point is not entirely consistent. However, the underlying logic and reasoning of the case law generally is consistent. Courts will consider if a child is sufficiently mature to weigh intelligently the factors essential to making a wise choice regarding their custody. This has to be considered on a case-by-case basis.
Courts must not lose sight of the child’s age and vulnerability to be influenced by a parent. There are lots of subtle and not so subtle things a parent can do to influence a child’s preferences. For this reason, most courts consider a child’s wishes to be “informative” rather than “dispositive.” Courts also should give great weight any evidence that a parent may have coached their child with respect to their preferences.
Even in a case where a child has not been coached, a court still should consider a child’s vulnerability to be influenced by a parent. For example, in one case, the court found that the preferences of the children may have been influenced by the fact that during all of their time at their father’s residence they were engaged exclusively in enjoyable activities, such as ice skating and shopping. They did not bring homework to do at their father’s house and they had no responsibilities or chores to do at his house. Hence, “the father’s home was decidedly and artificially free of the stress and conflict that is inherent in day-to-day life.” The court concluded that this may have influenced the children’s preference to live with their father.
This brings us back to the two examples I gave earlier. Clearly, the preferences of a child who wants to go to one parent to have fun would be given less weight than a child who wants to go to another parent to feel safe.
Ideally, a custody case never comes down to the preferences of the children. Although the fight is over them, they should never be in the fight. Parents should avoid putting their children in the middle of a custody dispute, should never coach them, and most certainly should not expect them to take sides.