Can Children Express Preference in Maine Custody Proceedings?

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

When a minor child’s parents separate, determining the child’s custody arrangement is probably the hardest decision the court must make. Parents often have differing views on the best custody arrangement, and the child may have his or her own preference as well. In many states, judges are required to consider a child’s custody preference in addition to the parent’s desires.

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

Overview of Custody Decisions in Maine

Maine courts decide custody based on what’s in the child’s best interest. To determine the child’s best interest, the judge will consider a number of different factors, including each of the following:

  • the child’s age
  • the child’s relationship with each parent and anyone else who may affect the child’s welfare
  • the duration and stability of the child’s current living situation
  • the stability of any proposed living arrangements
  • each parent’s ability to give the child love, affection, and guidance
  • the child’s adjustment to his or her present home, school, and community
  • each parent’s willingness to encourage frequent contact between the child and the other parent
  • each parent’s ability to cooperate or learn to cooperate in child care
  • each parent’s methods for parental cooperation and resolving disputes, and willingness to use those methods
  • the effect on the child if one parent has sole authority over the child’s upbringing
  • whether either parent has a history of domestic abuse or child abuse
  • whether either parent has lied about abuse to gain an advantage in the custody proceedings
  • if the child is under one year of age, whether the child is being breastfed
  • whether either parent, or a person living in either parent’s household, has been convicted of a sex offense
  • the child’s custodial preference, if the child is old enough to have a meaningful opinion, and
  • any other factors the court deems relevant to custody.

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

When Will the Court Consider a Child’s Preference?

Maine judges must consider the child’s custodial preference whenever the child is old enough to have a meaningful opinion. There is no set age when the court will consider the child’s opinion; the judge decides whether the child is “old enough” on a case-by-case basis.

The judge will consider the reasons behind the child’s preference to determine whether the opinion is meaningful. For example, if a son wants to live with his father because he allows him to eat whatever he wants and buys him more toys, the court is unlikely to view that as a meaningful opinion. However, if the son articulates reasons like his father helping more with homework or coaching his soccer team, the judge is more likely to give the preference weight in the custody decision.

The older and more mature a child is, the more weight that child’s preference will have on custody. One Maine court has specifically stated that the opinion of a child aged 12 or older should carry a lot of weight. Another court has also stated that the opinion of a 4 year-old won’t factor into the custody decision.

The child’s wishes are only one of several factors a court will consider when deciding custody. If all other factors are equal, the judge may use the child’s preference to tip the balance one way or the other. On the other hand, a court won’t hesitate to rule against the child’s preference if the judge believes that preference is not in the child’s best interest.

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

Maine judges are sensitive to the pressure a child would feel testifying about a custodial preference in front of his or her parents. Courts have a number of ways they can ease that pressure, but still determine the child’s opinion.

Frequently, a judge will ask the parents to consent to an interview between the judge and child in court chambers. The parents aren’t present for the interview. The attorneys can be present but usually won’t ask the child questions. The attorneys and parents can suggest questions for the judge to ask. A court reporter will also be present to make a record of the conversation.

Sometimes a child in a custody case is represented by his or her own attorney, called a guardian ad litem. The guardian ad litem submits a report to the court regarding what is in the child’s best interests, and may testify about the child’s preferences as well. Other times, the court will appoint a custody evaluator or mental health professional to speak with the child and communicate the child’s desires to the judge.

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

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