Can Children Express Preference in Utah Custody Proceedings?

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

There are more children of separated parents in the United States today than ever before. With all of the emotion surrounding a separation, parents sometimes fail to include their children’s desires in custody decisions. In many states, however, judges must consider a child’s preference when determining custody.

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

Overview of Custody Decisions in Utah

Utah courts decide child custody whenever parents can’t come to an agreement on their own. Judges must consider a number of factors when making custody decisions, including each of the following:

  • the parents’ past conduct and moral standards
  • which parent is most likely to act in the child’s best interests, including allowing the child frequent contact with the other parent
  • the child’s relationship with each parent
  • either parent’s history of domestic violence
  • the child’s special needs, if any
  • the distance between the parents’ residences
  • the child’s preference, if the child is old enough, and
  • any other factor the court deems relevant to custody.

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

When Will the Court Consider a Child’s Preference?

Whether a Utah court will consider a child’s preference when deciding custody depends on the child’s age and maturity. Judges will give more weight to older children’s preferences (14 and older), and disregard the opinion of children under ten. Children between ten and 14 can have limited input on custody decisions. In one case, an 11-year old boy stated a preference to live with his father, but the judge specifically stated that an 11-year old shouldn’t have control over where he lives.

Judges will also look at the reasons a child prefers to live with one parent over the other. In one case, a father with custody of two boys moved them from their hometown and away from their school, friends, and other family members. The children wanted to live with their mother to be close to friends and family, and to continue going to the school they knew. The court found that these were valid reasons to want to live with their mother and gave the children’s preferences significant weight in the custody decision. On the other hand, if a child’s reasons for wanting to live one parent are immature, for example, because one parent is more lax with discipline or gives them lavish gifts, the judge won’t give the child’s preference much weight.

Even if a child has a strong custodial preference, it won’t be the controlling factor in a court’s decision. A judge can always overrule a child’s preference if it’s in the child’s best interest to live with the non-preferred parent.

Judges will also watch to see if parents have coached their children. In one case, a judge questioned the children and discovered that their mother had told them to lie about her boyfriend’s overnight visits in their home. The mother’s coaching was a major factor in the judge’s decision to transfer custody to the father.

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

In Utah, children can’t testify in court unless there are extenuating circumstances, and there’s no other way to obtain their testimony. Instead, judges usually interview children in court chambers to determine their custodial preferences. Normally, the court will ask the parents for permission to interview a child, but parental consent isn’t necessary if the judge decides that an interview is the only way to figure out the child’s custodial desires.

Parents can’t attend the in-chambers interview. The judge may or may not allow the parent’s attorneys to be present. Often, a court reporter will record the interview.

Courts can determine a child’s preference in other ways as well. In one case, the judge deciding custody considered letters written by two boys to their mom, stating that they wanted to live with her. Courts may also allow custody evaluators or mental health professionals to testify about what children have told them regarding their custodial preferences.

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

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