Children’s Preferences in Custody Disputes

Loving parents usually listen to their children before making important decisions, even if it means that their views do not necessarily determine the final outcome. For example, one might ask for a child’s opinion before buying a new house or deciding on a new school, but that doesn’t mean that they get to make the final decision. So when parents divorce it is only natural to discuss children’s preferences. An influential therapist has said, “Children feel powerless at divorce and should be invited to make suggestions that the adults will consider seriously. In this way they can feel active instead of passive agents in the crisis.”1

However, when parents cannot agree on a parenting plan and the matter goes to court, one of the most difficult issues facing parents, therapists, and courts who are called upon to make decisions about custody is the extent to which the preferences of children should be taken into account and how they should be taken into account. In many states, a child’s preferences must be taken into account in determining their best interests.

In a custody case, there seems to be a common misperception that once a child is twelve he or she gets to decide which parent to live with. This is an urban legend.2

Similarly, a judge is not going to ask a child to testify about living preferences. In fact, many judges are extremely reluctant to allow a child to testify in court, or even to speak to the judge privately in chambers. They do not want to place the child into the middle of the dispute and add even more emotional baggage for the child. In such situations, children end up carrying an enormous load of guilt if they favor one parent at the expense of the other.

Nonetheless, a child may want to express a preference about where he or she wants to live. In such cases, there are usually ways for a court to hear the preferences of the children through a custody evaluation by a therapist who is trained in interviewing children.3  Some jurisdictions may appoint a minor’s counsel or guardian for the child. Before agreeing to such an appointment, you should make sure that the attorney has the proper training to interview children.

When children are interviewed about their preferences, an evaluator will want to know the rationale for the child’s preferences and will consider that rationale in light of all the circumstances of the family relationships to understand how they fit into the child’s best interests.

The first question is whether the child is expressing a genuine preference or if he or she is mirroring the preference of one of the parents as a result of direct pressure or threats or a desire to please. In dysfunctional relationships, preferences may reflect the child’s alignment with the parent they most fear, or the parent they regard as the most unstable. Clues as to reliability can be discerned by the timing of the child’s statements, the type of words used by the child, and the extent they mirror the parents language.4  

The second question is whether a child’s stated preference to live primarily with one parent is a result of factors which are clearly not in their best interests. Younger children may lack the developmental capacity to understand what life would really be like if their preferences became reality. They may not have a mature sense of time and may not have a clear idea what a week without one parent would be like. Also, a child may state a preference impulsively or for reasons which are not in their best interests. For example, an adolescent boy may state that he wants to live with his father. Upon closer examination, the evaluator finds out that the real reason for his preference is that the father provides no structure or discipline, lets him drink, stay out all night, and so forth. Another example would be a 5-year-old girl who says she wants to live with her father because he buys her candy. Children are fickle and may express a preference as a result of some minor frustration, such as “Mom made me do homework and wouldn’t let me go out.” They may take a position in the heat of the moment just after an argument. Kids also tend to think that the “grass is always greener” and their allegiances fluctuate depending upon who they’ve just spent time with. That’s why it’s a good idea to have a series of interviews over a period of time, taking place after a child has been with each parent.

Another problem with giving great weight to children’s preferences is that it may weaken a parent’s authority over the kids. For example, the kids could believe that they can control their parents by threatening, “If I don’t get what I want, I’m telling the judge that I don’t want to live with you anymore.”

The considerations outlined above are not reasons to avoid consulting with and listening carefully to your children’s feelings and concerns when you divorce. However, it should be done sensibly and with their best interests in mind. Children should not be made to feel that they are pawns in a battle between two parents.

2 In Texas, however, a child may file an affidavit with the court stating who they would like to live with. Texas Family Code section 153.008.

3 An excellent review is Richard A. Warshak’s “Payoffs and Pitfalls of Listening to Children.” Family Relations, 2003, Vol. 52, No.4.

4 The Art and Science of Custody Evaluations (2007) Gould and Martindale.