Can Children Express Preference in Kentucky Custody Proceedings?

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

In the United States, over a third of children have parents who are separated. Each year, more families have to figure out a custody arrangement for their children. Custody determinations can be complicated, and not only because both parents often want custody; many children have their own custodial preferences as well. Many states require judges to consider the child’s opinion when deciding custody.

This article will explain how a child’s preference affects custody in Kentucky. If you have additional questions about the effect of a child’s custodial preference in Kentucky after reading this article, you should  consult a local family law attorney.

Overview of Custody Decisions in Kentucky

In Kentucky, courts decide child custody whenever the parents don’t reach an agreement on their own. Judges must consider a variety of factors, including each of the following:

  • each parent’s wishes as to custody
  • the child’s relationship with parents, siblings, and any other person who significantly affects the child’s best interests
  • the child’s adjustment to school, home, and community
  • the child and parents’ physical and mental health
  • any history of domestic violence in the child’s home
  • who has historically been the primary caretaker for the child
  • whether the parents intend to place the child with a custodian
  • the child’s wishes for custody, and
  • any other factor the court deems relevant.

To read more information about custody decisions in Kentucky, see  Child Custody in Kentucky: The Best Interests of the Child.

When Will the Court Consider a Child’s Preference?

In Kentucky, judges will consider a child’s preference whenever the child is mature enough to participate in the litigation without harming the child. There are two reasons that courts don’t question younger children about their custodial preference. First, asking a young child which parent he or she prefers can reinforce the child’s belief that the parents’ separation is their fault. Also, there’s a greater chance a young child’s preference is not connected to his or her best interest, and would be based on superficial reasons.

While there’s no specific age when a judge will consider a child’s preference, generally children aged eleven and older are mature enough to voice a rational custodial preference. Courts will determine whether a child less than 10 years old is mature enough to give a custodial preference on a case-by-case basis. A child under 11 would need to be particularly mature for the judge to give his or her preference much weight.

If a child simply refuses to live with one parent, courts may award custody to the other parent. In one case, two girls, aged 12 and 16, refused to live with their mother who had mental health problems; the court honored their request to live with their father. Kentucky judges are more likely to follow a child’s preference if the reasons behind the opinion show a parent’s inability to control or supervise the child. For example, courts have granted children’s custody requests in situations where a parent was having improper sexual relationships instead of supervising the child.

A child’s preference usually won’t be the deciding factor in custody. Courts weigh the child’s desires along with all the other custodial factors. The weight a child’s preference receives depends on the child’s age, the reasons behind the preference, and whether the child’s opinion coincides with other evidence about what’s in the child’s best interest.

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

Kentucky courts typically won’t require children to testify about their custodial preferences in court. It’s already hard enough for a child to watch parents separate, and most judges don’t want to make it more difficult by forcing a child to choose between his or her parents in front of them.

It’s common for the court to find out the child’s custodial preference by interviewing the child in court chambers, outside of the parents’ presence. The judge will usually allow the attorneys to be present for the interview. The court is also required to have the interview recorded, normally by a court reporter.

The court can also seek the help of professionals like custody evaluators, psychologists or psychiatrists to ascertain the child’s desires as to custody. A custody evaluator or other mental health professional speaks with the child directly and submits a report to the court. The report includes a finding of what is in the child’s best interests, and the child’s custodial preference. The parents’ attorneys can call the professional as a witness in court to testify about what the child said.

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

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