When parents of minor children separate or divorce, courts must make many important decisions regarding physical and legal custody. In most divorces, no issue is more contested or important than child custody. Both a parent's and a child's wishes are relevant in any custody decision.
This article explains how a child's preference impacts custody decisions in Connecticut. If you have additional questions after reading this article, contact a local family law attorney for advice.
"Legal custody" refers to a parent's right to make medical, educational, religious, or legal decisions on the child's behalf. In most cases, parents will share legal custody so that both parents can have an equal role in a child's upbringing. If the parents have a contentious relationship or there's a history of domestic violence, it's probably not in a child's best interests to award the parents joint legal custody. In these situations, one parent will have sole decision-making authority over the child.
"Physical custody" in Connecticut involves a parent's physical time with the child. For example, a parent with primary physical custody lives with the child. A judge will try to maximize each parent's time with the child as long as it serves the child's best interests.
In cases where the child's safety is at issue, a judge may award one parent sole physical custody and the other minimum visitation time. A parent won't lose visitation rights except in the most extreme circumstances. For example, a parent with a history of domestic violence or substance abuse struggles will still likely have visits with the child, but those visits may be supervised.
To determine the custody arrangement best suited to a child's needs, a judge will look at a child's best interests. In Connecticut, a judge will look at the following factors when deciding what kind of custody arrangement is appropriate:
Even if parents are able to reach their own agreements regarding child custody in Connecticut, a judge will review the agreement to ensure that it meets the child's best interests. See Conn. Gen. Stat. § 46b-56 (2020). Separating parents are also required to complete a parenting education program under Connecticut's child custody laws. To read more information about custody decisions in Connecticut, see Child Custody in Connecticut: The Best Interests of the Child.
Parents wonder, "can a child decide custody in Connecticut?". The answer depends on your family's unique circumstances. A child's preference is one of many factors a judge will consider in a custody case. Under Connecticut law, there's no fixed age at which a court must consider a child's wishes regarding custody. Still, courts will generally consider the opinion of children aged 13 or older and disregard the opinions of children who are five or younger. When children are between the ages of five and 13, however, a judge will decide whether the child's preferences are relevant to the custody decision on a case-by-case basis.
After hearing a child's preference, the court will first determine whether the child is making an intelligent choice about the parent with whom he or she wants to live, rather than just an "in the moment" preference. For example, courts are not likely to view a child's preference as relevant when it's based on momentary anger with one parent or the child's whims. Courts are more likely to consider a preference that's based on big-picture reasons, like a closer relationship with one parent.
If the judge decides that a child's preference is relevant to the custody decision, the judge then has to also determine how much weight to give the preference, compared to other custody factors. The child's maturity and the reasoning behind the preference will impact how much weight the judge places on the child's opinion.
A court can disregard a child's preference when the judge believes that granting custody to the preferred parent wouldn't serve the child's best interests. So, even though a child may want to escape one parent's rules or discipline to live with a parent that is more lax, a court may decide structure is an important part of a child's upbringing and therefore disregard that part of the child's opinion. For example, if Johnny prefers mom's house because she lets him play video games all night, a judge will likely disregard Johnny's choice since it's not really in the child's best interests.
When possible, a judge will avoid having a child testify in court. There are ways to ensure that a child is able to express his or her custody preference. For example, a judge can interview the child in chambers, outside of the courtroom and outside the parents' presence. Attorneys and a court reporter will attend an in-chambers interview so that the information collected can be used at trial.
Alternatively, a judge can appoint a guardian ad litem or custody evaluator to your case. Both individuals are trained professionals with slightly different roles. A guardian ad litem (GAL) will interview both parents and the child, but a GAL only represents the child (not his or her parents) in a custody hearing. See Conn. Gen. Stat. § 46b-54 (2020). A custody evaluator appointed by the court doesn't represent the child or the parents, but he or she will interview all individuals involved and make a custody recommendation to the court. A judge can also obtain a child's preference through the use of a family-relations counselor, a psychiatrist, or a psychologist who can speak to the child and report back to the judge.
Courts are also careful to watch for any signs that the child has been coached to testify in favor of a parent or against a parent. Either parent's attempt to manipulate the child's testimony could backfire against that parent in the judge's custody decision. If you have additional questions about the effect of children's custodial preferences, contact a Connecticut family law attorney for help.