Can Children Express Preference in North Dakota Custody Proceedings?

A look at how a child’s preference affects custody in North Dakota.

Although a child may prefer one parent over the other, a child’s preference won’t necessarily make or break a custody case. A child’s best interests will be the deciding factor in a custody proceeding. Nevertheless, a child’s wishes can influence a custody case’s outcome.

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

Child Custody Basics in North Dakota

A judge can’t make a custody decision simply by plugging numbers into a calculator. Instead, judges have considerable latitude when it comes to evaluating a child’s best interests.

A court can review any factor it views as relevant to a child’s best interests. Nevertheless, the following factors are generally considered in most custody cases:

  • each parent’s emotional ties with the child
  • each parent’s ability to provide the child with adequate food, clothing, shelter, and safety
  • the child’s developmental needs
  • each parent’s ability to meet the child’s emotional and developmental needs
  • the child’s home environment and the length of time the child has lived in the home
  • each parent’s moral fitness
  • the child’s adjustment to home, school, and community and the potential effects of any change
  • each parent’s willingness to encourage the child to maintain a strong relationship with the other parent
  • each parent’s mental and physical health
  • the child’s custodial wishes if of sufficient maturity to make a sound judgment, and
  • each parent’s history of domestic violence, if any.

A court will also evaluate a child’s safety and stability in each parent’s care. If possible, a judge will attempt to keep siblings together. However, each child’s needs will be looked at individually to determine what’s in his or her best interests. For more information about custody decisions in North Dakota, see  Child Custody in North Dakota: The Best Interests of the Child.

When Will the Court Consider a Child’s Preference?

A child’s parental preference is given serious consideration once a child has reached sufficient maturity. “Maturity” is not defined in North Dakota’s custody laws, but is assessed in each case. Generally, a child who can formulate a sound judgment will be considered sufficiently mature to express a preference.

For example, in one North Dakota case, a 10-year old’s preference to live with his mother was granted. The child’s expressed wishes were well reasoned and rooted in his adjustment to school and community. Although the child’s preference wasn’t the only basis for the custody decision, it was given great weight because the child was sufficiently mature.

However, in another case, the court ignored a 3 year-old and 6 year-old’s parental inclinations. The children didn’t favor either parent. As such, the court refused to give any weight to the children’s wishes because of their age and inability to form a reasoned preference.

In some cases, a sufficiently mature child may express a preference to live with someone other than his or her parents – like grandparents. A child’s parents usually have a right to custody so long as there has not been neglect or abuse. However, in instances where a child has resided with a grandparent, or other relative for a significant amount of time, a court may award custody to the relative. A child’s age, emotional maturity and stability will affect how much importance his or her custody desires are given. North Dakota courts tend to give more consideration to the wishes of more mature children.

Will My Child Have to Testify in Open Court?

In most cases, a child won’t have to testify in open court. Many children of feuding parents never set foot inside a courtroom. Judges generally try to insulate children from these types of cases because custody trials can be traumatic.

Still, children can speak up and be heard in their parents’ custody proceedings. In some cases, a judge may interview a child in chambers, as long as both parents agree. Parents aren’t allowed to attend in chambers interviews so that a child won’t feel pressured. Attorneys for the parents may observe the interview and submit or ask questions. In addition, a court reporter will be present to take notes and create a record of the child’s testimony.

Alternatively, a judge can appoint a child professional such as a guardian ad litem or licensed therapist to meet with the child and determine the child's needs and custody desires. The appointed professional may meet with the child’s parents as well. However, the guardian or therapist is appointed to represent a child’s interests and not the interests of the child’s parents.

If you have additional questions about the effects of children’s preferences on custody proceedings in North Dakota,  contact a local family law attorney for advice.

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