Family Law

Child?s Preference in Custody Cases

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Parents involved in child custody litigation often want to know if their child(ren) will be given the opportunity to tell the judge his/her/their preference on which parent they want to live with.  There are many factors that will determine my answer to this question.

Arkansas courts have often used the following rule of thumb:  under 8 years old, the child’s preference will not be considered or not given much weight; 12 or over and the child’s preference will be given great weight.  In reality, every judge is different and these “rules” are mere starting points, not black letter law.  I have had judges talk to children as young as 5, and it was clear to me that they were swayed one way or the other by what the child said - whether the judge admitted it or not.  I have had other judges talk to teenagers as old as 17, find out the preference of the teen, and then go directly against the teen’s stated preference.  This is of course acceptable because the child’s preference is only one of several factors to take into consideration.  But, why put the teen through it if the decision has already been made by other evidence?  (No wonder teens are many times untrustworthy of authority.)

So how does a parent make a decision on this issue?  Talk with your lawyer and weigh the pros and cons.  What judge do you have?  Is that good, bad, or neutral for your case?  How does your judge address the issue of children testifying?  Will this hurt or help your case?  Have the children indicated to you what they want to do? (By the way, do not quiz your children about this!  Let them be children.  However, if they bring it up and want to talk about it, let them.)  Will testifying in court be traumatizing to the child? 

Consider all of these factors and you will be well on your way to making an informed, knowledgeable decision.

Full post as published by Kevin Hickey Law Blog on March 20, 2008 (boomark / email).