Can Children Express Preference in Nebraska Custody Proceedings?

A look at the impact of a child’s custodial preference on custody in Nebraska.

Any good parent abides by the philosophy that you can’t give a child everything he or she wants. The same rule applies to custody. While a judge may consider a child’s desires for a certain time share arrangement, a child’s custodial preference will only be considered if it’s in the child's best interests.

A judge ultimately decides how much consideration to give a child’s preference regarding custody. There isn’t a certain age at which a child’s wishes should be weighted more heavily. However, a specific child’s maturity and comprehension matters more than chronological age when it comes to custody preferences.

Children are rarely required to testify in custody trials. Furthermore, laws exist to help prevent children from becoming pawns in their parents’ custody battles. As described more fully below, individuals, such as a guardian ad litem  or child therapist can be a voice for a minor in a custody case.

This article provides an overview of the impact of a child’s preference on custody proceedings in Nebraska. If you have questions after reading this article, please contact a local family law attorney for advice.

Child Custody Basics in Nebraska

Custody decisions are relatively simple and painless when parents agree. Nevertheless, when parents can’t agree, a court will need to craft a custody arrangement that serves the best interests of the child.

Judges are given a lot of discretion in deciphering what arrangement is in a child’s best interests. A few factors must be considered in every custody case, including:

  • each parent’s relationship with the child prior to the divorce
  • the child’s wishes regarding custody, if the child is of a sufficient age
  • the child’s physical and emotional health
  • each parent’s ongoing involvement in child care, and
  • any history of domestic abuse by either parent, even if the violence was not directed at the child.

Additionally, a judge may consider any other factor that he or she deems relevant to custody. A court will evaluate a child’s developmental needs and his or her safety in each parent’s care. In families involving multiple children, each child’s needs are considered separately. In some cases, a judge may award each parent primary custody of a different child if it is in each child’s best interests. To learn more about custody decisions in Nebraska, see  Child Custody in Nebraska: The Best Interests of the Child.

When Will the Court Consider a Child’s Preference?

A Nebraska court must consider a child’s parental inclinations if that child is sufficiently mature and capable of forming a well-reasoned opinion. Thus, in custody cases involving two good parents, a mature child’s custody preference can be the tiebreaker. A child’s maturity is more important than his or her chronological age when it comes to custody decisions.

For example, in one Nebraska case, a judge granted the custody wishes of a 12 year-old daughter and 14 year-old son. Both children expressed a desire to live with their father. The judge decided that because children could comprehend what was happening and the father was a stable and fit parent, he should be awarded custody.

Nevertheless, one judge refused to grant the custody arrangement requested by a 4 year-old and 7 year-old. Essentially, the court determined that the children were too impressionable and therefore, unable to make reasonable decisions on their own. While the children’s custodial preferences were considered, they were given little, if any, weight.

Even when a court considers a child’s custody preference, facts must exist to justify the child’s desires. A final custody decision will be based on a child’s best interests. A child’s age, intelligence and emotional maturity will govern how much weight is given to his or her wishes.

Will My Child Have to Testify in Open Court?

Children very rarely have to testify at custody trials. Generally, judges try to shield children from their parents’ custody battles. Moreover, testifying on the witness stand can be frightening and stressful for children and should only happen when absolutely necessary.

Nevertheless, children’s preferences and needs will be heard and evaluated by judges in every custody case. A judge may decide to interview a child personally, in chambers, outside of the courtroom. Parents can’t attend in-chambers interviews because of the risk they might influence a child to testify a certain way. However, attorneys are usually welcomed at these interviews and a court reporter will record the child’s testimony to use at trial.

In other cases, a judge may elect to appoint a trained child professional to meet with the child and find out his or her custodial wishes. These professionals might include a social worker, a child therapist, a custody evaluator, or  guardian ad litem. The professional will usually meet with a child and a parent outside of court. Based on interviews with the child, the therapist, social worker, or evaluator will testify in court about the child’s needs and wishes and ultimately serve as the child’s voice at trial. Most children involved in custody disputes never set foot inside a courtroom.

If you have additional questions about children’s preferences in Nebraska custody proceedings,  contact a local family law attorney for advice.

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