What Role does a Child’s Opinion Play in Contested Custody Cases?

Posted by: Gerald A. Maggio, Esq.

family law attorney Orange County; The Maggio Law FirmWhen a parent couple decides to get divorced, one of the biggest worries is around child custody. In the event that they fail to arrive at a mutual agreement on their own, the court will have to intervene in the matter and the judge would take a decision on initial custody. This implies that at least in the beginning, the court will decide where the child lives and the division of visitation and custody between the two partners.

The U.S. court system is often faced with the challenge of protecting the best interests of a child in high-conflict custody cases. However, lawyers and psychologists have been working together in order to better support the children’s well-being in such situations.

When there is isn’t any visible harm or disadvantage to the child, a court may decide to stay with the pre-existing living arrangements for the child, especially if he/she is fairly young. For instance, if the child has been staying with the mother since the time of separation, the court may decide to make that a permanent arrangement (unless it is proved to have a negative impact on the well-being of the child).

Are the child’s wishes important?

When the contested custody case involves slightly older children, especially teenagers, courts would also give consideration to the child’s opinion. In fact, it is important for the court to duly consider the opinion of a child with “sufficient age and capacity”.

In some cases, the wishes of children as young as 7 or 8 years have also been acknowledged by courts.

It isn’t necessary for courts to interview a child in order to comprehend his/her wishes in a contested custody case. Sometimes, the court might depend on the report submitted by the mediator about their interaction with the child. Alternatively, the minor’s counsel may have made certain statements which could be helpful in analyzing the child’s wishes. Irrespective of the age or capacity of a child, the court isn’t obligated to agree to their wishes. But due consideration is important in certain cases.

How does the court decide whether or not to consider a child’s opinion?

There are usually two circumstances under which the court considers it important to give weight to a child’s opinion in a contested custody case:

  • If it is in the best interest of the child to express his/her preference and also testify it.
  • If the court thinks that the child is of a suitable age to have an intelligent preference. Usually children who are 14 years or above are allowed to express their preferences.

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