A common question we receive in child custody cases involving children who are “tweens” or “teens” is whether the children can choose with which parent to live a majority of the time. For many parents, this scenario can be heartbreaking – no parent wants to feel rejected by his or her own child. For many children, this scenario can be equally heartbreaking – most children do not want to have to choose between parents. At the same time, children above a certain age have the wherewithal to express an intelligent opinion with regard to how spending more time with one parent will affect their development – in school, with peers, with activities and with family. Can children really have this much power in a custody dispute?
The statute governing custody in Missouri directs the court to consider eight different factors, one of which is “the wishes of the child as to the child’s custodian.” So, Missouri courts must consider the preference of a child who is of sufficient age to formulate and articulate a preference (usually children at least eight years of age, more commonly at least ten years of age). But that preference is only one of the factors to consider, and the court must always harmonize any preference with the best interests of the child.
In a high conflict custody dispute, courts often utilize a guardian ad litem to assist in investigating the case. The guardian ad litem will likely interview the children and gather their expressed preferences. In the interview, the guardian will try to pull out the reasons behind the preference and whether those reasons further the best interests of the child or reflect choices that would be adverse to the best interests of the child. For example, a teenager who prefers one parent because that parent has a very permissive attitude toward social activities, dating and sex may appeal to impulses that hinder rather than further child development. As the case progresses, the court tries to avoid having the child testify, and often will conduct in camera interviews in chambers – sometimes on the record (with a court reporter), sometimes with attorneys present.
As you can see already, expressed preferences will not alone carry the day, and the relative weight of the preference will be viewed in light of the strength and sincerity of its reasoning and also the other evidence before the court. In some cases the preference may carry the day; in other cases, the preference may have no impact.
Parents should be cautious in trying to influence the child preference issue. In Missouri, courts are sensitive to parents who try to alienate a child from the other parent, which can range from subtle “trash talking” about one parent to a lengthy pattern of manipulation and fabrication that has caused the child great stress to even cases of forcing a child to claim physical or sexual abuse when none exists. Parents who take this route almost always get “found out,” and suffer the consequences (though the child truly suffers the most).
Parents who feel a child has expressed a genuine preference would be better served by building other evidence to support that preference as in the best interests of the child. Testimony from family members, teachers and child care providers could be helpful, as could retaining a psychologist or psychiatrist as an expert to conduct an assessment of both parents and all children involved. How to best structure your case should be a matter you determine only through consultation with your attorney.
Ultimately, courts look to place a child in an environment most favorable to healthy development. As a child gets older, the focal points tend to be academics, peer relations, extracurricular balance and a sense of consistency and normalcy. Here, the court will certainly examine the parenting styles of each parent to determine how those styles helped create the particular preference expressed by the child. If the parenting style leads to an unstable or negative environment, even if one favored by the child, the court will elect to place custody with the parent who can provide the healthier environment.
Courts will consider the preference of the child for both legal custody (making decisions) and physical custody. The children may have insight into the ability of the parents to make joint decisions, without even knowing they do, simply by describing what happens with doctor’s appointments or soccer games. Physical custody will turn on a schedule that works best for the varied needs of the child and which parent seems best able to meet those needs. Even if a child reasonably wants to spend the majority of time with one parent, the court must consider the statutory obligation to insure both parents have frequent and meaningful contact with the children.
You might be surprised to hear the voices of the kids in the middle – even children who have been manipulated usually find ways to express the truth, and these children have a much more finely tuned ear to the difficulties of living in two households than most realize. Listening to these voices is important, even if it is not necessarily the pivot point for custody.
If we can make a generalization, we would say that courts will honor preferences when consistent with the markers of the best interests of the child – which parent will provide an environment that fosters good grades, positive emotional support, meaningful and respectful interaction with the other parent – in a word, stability.
If you have questions about child preference in custody disputes, contact us – we can help.