Can Children Express Preference in Vermont Custody Proceedings?

Can a child's preference affect custody? Find out below.

Ending a relationship is never easy, but when the separating couple has children, it gets that much harder. Separating parents face the additional difficulty of trying to determine the best custody arrangement for their children. Along with the opinions of each parent, children often have their own opinion on custody. In most states, the court must consider the child’s preference before deciding custody.

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

Overview of Custody Decisions in Vermont

When separating parents can’t agree on custody, a judge decides custody for them. Courts must consider a variety of factors during the custody determination, including the following:

  • the child’s relationship with each parent
  • each parent’s ability to provide the child with love, affection, and guidance
  • each parent’s ability to provide the child with food, clothing, medical care, and a safe environment
  • each parent’s ability to meet the child’s present and future developmental needs
  • the child’s adjustment to home, school, and community, and the effects of any change
  • each parent’s willingness to encourage the child’s relationship with the other parent
  • the child’s relationship with any other person who affects the child’s well-being
  • the parents’ ability to communicate, cooperate, and make joint decisions on behalf of the child
  • whether either parent has a history of abuse against the other parent or the child, and
  • the child’s preference, if the child is 14 years old or older.

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

When Will the Court Consider a Child’s Preference?

When a child has reached the age of 14 in Vermont, the child can choose his or her guardian, subject to the court’s approval. Children who are younger than 14 don’t have the right to select the parent who they would like to have custody. Vermont lawmakers believe that children of tender years can be harmed more than helped by asking them to choose between their parents. Older children, however, are more likely to make a mature decision about what’s in their best interest.

Judges will sometimes speak to a child younger than the age of 14 about his or her custodial preference, but that preference will have limited impact on the custody decision. When the court interviews a child under 14 about custody, it’s mainly to gather information about what’s in the child’s best interest.

On the other hand, when a judge speaks with a child who is at least 14, the court will defer to the child’s preference unless it is clearly against the child’s best interest. For example, if the court determines that the child’s preferred parent fails to supervise the child, or cannot provide food or shelter for the child, the court can overrule a 14 year-old’s preference and award custody to the other parent. If both parents are fit to have custody, however, the court will follow the child’s selection.

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

Vermont judges only allow children to testify about their custodial preferences in court when:

  • the child’s testimony is necessary to help the judge determine an important issue before the court
  • the value of the child’s testimony outweighs the potential harm caused by having the child testify, and
  • the evidence the court needs isn’t obtainable in any other way.

In cases where the child does testify, the judge will appoint a “guardian ad litem,” which is an attorney who represents the child’s interests in the custody case.

When it’s necessary for a child to testify, the judge is likely to interview the child privately, in court chambers. Only in rare cases will the court allow the child to testify in the courtroom. When children testify in front of their parents, they may feel pressure to please one parent, or feel guilt about hurting one parent by choosing the other. Therefore, courts prefer to interview a child privately, although the parents’ attorneys may be present. A court reporter must also be there to record the interview.

Courts have other ways to discover a child’s custodial preference as well. Sometimes, a custody evaluator, mental health professional, or other professional or agency will meet with the child during the litigation. These professionals will often provide the court with reports that include the child’s opinions on the custody arrangement.

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

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