Can Children Express Preference in Connecticut Custody Proceedings?

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.

Overview of Custody Decisions in Connecticut

Whenever judges make decisions on child custody, their main focus will be on what's in the child's best interests. Under Connecticut's child custody laws, judges must consider a long list of factors when making that decision—including the child's custody preferences.

Even if parents can agree on a parenting plan, they'll have to submit their agreement to the court for a judge's approval. The judge will review the agreement to ensure that it meets the child's best interests under the legal standards. (Conn. Gen. Stat. § 46b-56 (2020).)

Child Preference in Custody Matters in Connecticut

You may be wondering if your child can decide on custody. The simple answer to that question is no. A child's preference is only one of the many factors a judge will consider in a custody case.

Under Connecticut law, there's no fixed age when a judge must consider a child's wishes regarding custody. Still, courts will generally consider the opinions 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, 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 judge may disregard a child's preference if 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 the more lax parent, a judge 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.

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

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. (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.

Judges 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.