CHILD CUSTODY AND THE APPLICABILITY OF A CHILD’S PREFERENCE IN COURT PROCEEDINGS
Child Custody upon divorce will be decided by the court if the parties cannot agree to a parenting schedule. If the matter proceeds to litigation there are numerous factors that will be relevant to the court’s determination of the parenting schedule which will be in the child’s best interests. The judge must consider the following factors to determine the best interests of the child and the parenting schedule for each of the parents: 1) each parent’s history of caregiving for the child, 2) each parent’s ability to be a fit parent, 3) the stability in each parent’s household, 4) the child’s health and safety, 5) either parent’s history of abuse or domestic violence, 6) either parent’s use of drugs or alcohol, 7) which parent is more likely to allow for and/or encourage a relationship between the child and the other parent, 8) whether either parent has made any false allegations of abuse against the other parent to gain an advantage in the litigation, 9) the residence of the child’s siblings if any, 10) the child’s preference and any other factors relevant to the child’s welfare.
A child’s preference should be considered by the Court in making any determination of custody or a modification of custody. A child’s preference is not determinative or conclusive but will be considered by the court in making the final custody order. If the child is over the age of fourteen the Court will allow the child to testify in open court as to their preference for living with a parent unless the court determines that testifying in such a manner would not be in the child’s best interests. Each party will have the opportunity to present their evidence, support or opposition to either parties wishes to allow the child to testify. The court will consider any and all factors which mitigate for or against allowing the child to testify. Any and all factors which have a potential to affect the child’s well-being will be considered by the court and the court will decide the weight to be given to the child’s preference for living based upon the reasons for the child’s preference. Each case will present different facts and circumstances for the court to consider. If a child under the age of fourteen wishes to express a preference for custody the Court is not required to allow the child to testify in court but does have discretion to allow oral testimony if the child is of sufficient age and capacity to reason, so as to form an intelligent preference as to custody or visitation. Courts will be more receptive to allowing a child who is closer to fourteen years of age to testify than a younger child.
COURT MAY PROHIBIT CHILD’S TESTIMONY IF NOT IN BEST INTEREST REGARDLESS OF AGE
The Parties must keep in mind that the court may prohibit any child regardless of age from testifying if the court determines that the value of the child’s testimony is outweighed by its lack of probative value, the emotional detriment testifying may have on the child, or otherwise testifying is not in the child’s best interest. The court will likely consider the impact upon the child of testifying including any affect upon the relationship with the parents. If the court determines that allowing oral testimony in open court is not in the child’s best interest the court will provide an alternative means for obtaining the child’s preference. If the court does not allow oral testimony the court will order that the Child’s preferences be determined through a counselor or other professional child custody evaluation.