Can Children Express Preference in D.C. Custody Proceedings?

Can children make their own decisions about custody in D.C.? Find out below.

Sometimes, separating parents can’t seem to agree on a child custody arrangement and need to ask a judge to make custody decisions for them. You're probably aware that judges must listen to each parent’s views on custody, but you may not know that in many states, courts must consider the child’s opinion as well.

This article will explain how a child’s preference affects custody in Washington, D.C. If you have additional questions after reading this article, you should  consult a local family law attorney.

Overview of Custody Decisions in the District of Columbia

In all cases where separating parents can’t agree on custody, the court must issue an order that details how the parents will divide visitation time and decision-making responsibilities for the child. In the District of Columbia, judges consider a number of factors when deciding custody, including each of the following:

  • each parent's wishes regarding custody
  • the child’s relationship with each parent, the child’s siblings, and any other person who affects the child’s best interest
  • the child’s adjustment to his or her home, school, and community
  • each parent’s mental and physical health
  • the child’s mental and physical health
  • either parent’s history of domestic violence
  • the parents’ ability to communicate with each other and make joint decisions
  • the parents’ willingness to share custody
  • each parent’s history of involvement in the child’s life
  • the parents’ geographical proximity to each other
  • each parent’s employment demands
  • the age and number of children involved
  • each parent’s ability to financially support the custody arrangement
  • the child’s preference as to custody, and
  • any other factor the court deems relevant.

To read more information about custody decisions in the District of Columbia, see  Child Custody in D.C.: The Best Interests of the Child.

When Will the Court Consider a Child’s Preference?

In D.C., judges must consider a child’s custodial preference whenever it's practical to do so. There is no minimum age when the judge must listen to a child’s opinion; some D.C. courts have followed the preferences of a child as young as four years old. Judges have also stated that children aged eight and nine are clearly old enough to express an opinion about what custody arrangement would be in their best interest.

Courts don’t have to follow a child’s preference; they just have to consider the opinion along with all the other factors. If a child’s preference isn’t in his or her best interest, a judge will likely reject the child’s wishes.

The child’s reasons underlying the preference for one parent over the other will determine how much weight the court gives the opinion. For example, if the child is simply angry with one parent or desires to live with the parent who is less likely to impose discipline, the judge won’t give the child’s preference much weight. On the other hand, if a child desires to live with mom, for example, because she helps more with homework and is more involved in the child's life and activities, the child’s preference will be an important factor in the court's final custody decision.

Do Children Have to Testify About Their Custodial Preferences in Court?

In the District of Columbia, either parent can call a child as a witness to testify about his or her custodial preferences. Typically, however, parents and attorneys choose not to do so because of the obvious stress it places on children; most children would be terrified to sit on the witness stand, in front of their parents, and say who they want to live with. If a child is called as a witness, a judge can restrict the attorneys' questions to ensure the child doesn’t feel harassed or placed in an even more difficult and stressful situation. The judge may also have the child testify by closed circuit cameras, so the child can’t see his or her parents while answering questions.

More often, parents consent to an "in-chambers interview," where a judge asks the child questions in court chambers, away from the parents' watchful eyes. In this scenario, attorneys may attend the interview and submit their questions to the judge. If the judge believes an interview would result in psychological harm to the child, the judge may refuse to conduct it. When the judge does speak to the child in chambers, a court reporter must be present to make a record of the interview.

Courts can also determine custodial preference without requiring any testimony from the child. Sometimes, the child is represented by a  guardian ad litem  (an attorney or agent that represents the child's interests), who can testify or submit a report to the court about the child’s opinion on custody. The judge may also listen to testimony from a social worker, psychologist, or other mental health or custody professional that has spoken with the child.

If you have additional questions about the effect of children’s custodial preferences, contact  a District of Columbia family law attorney for help.

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