Can Children Express Preference in Kansas Custody Proceedings?

Learn more about when courts will consider a child's custodial preference.

In the United States, 35% of parents with minor children are no longer a couple. Because of this, more and more parents have to face the question of determining child custody. Deciding custody involves more than just one parent’s desire versus the other parent's; courts in most states must consider the child’s opinion on custody as well.

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

Overview of Custody Decisions in Kansas

Judges determine custody whenever the parents can’t come to an agreement on their own. Courts must consider several factors when deciding child custody, including each of the following:

  • the length of time any person other than the parent has had custody
  • each parent’s desires as to custody or residency
  • the child’s relationship with the parents, siblings and any other person who may affect the child’s best interests
  • the parents’ interactions with each other
  • the child’s adjustment to school, home, and community
  • each parent’s willingness to respect the relationship between the child and other parent
  • any evidence of spousal abuse
  • whether either parent is a registered sex offender
  • whether either parent resides with a registered sex offender, and
  • the child’s wishes as to custody or residency.

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

When Will the Court Consider a Child’s Preference?

Judge will consider a child’s preference whenever the child is of sufficient age, maturity and understanding. There’s no specific age when courts consider children’s opinions; the court decides whether a child is old and mature enough on a case-by-case basis. Generally, however, judges will always hear from children aged 12 and older. For younger children, courts may speak with children to determine their maturity before factoring the child’s preference into the custody decision.

Judges try to determine the reasons behind a child’s preference before deciding how much weight to give it in the custody decision. For example, some children may be easily swayed by gifts, lots of attention, guilt, or other emotions. Besides age and maturity, judges will look to factors like the child’s relationship with each parent, the strength of the preference, and hostility towards one parent or the other.

Courts will give a child’s preference greater weight when it’s based on factors that coincide with the child’s best interest. Judges will disregard the child’s preference when it’s based on a whim, temporary anger with one parent, or superficial reasons like gifts or lax discipline. Judges also try to ensure that the child’s preference isn’t the result of coaching or brainwashing. If the court discovers that a child has been pressured to select one parent, it can work against that parent in the judge’s custody decision.

The child’s preference is rarely the determining factor in a custody case. Courts are simply required to consider the child’s preference along with all the other custodial factors. If the child’s preference isn’t in his or her best interest, the judge won’t hesitate to grant custody to the other parent.

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

Kansas courts prefer not to have minor children testify in court about their custodial preferences. Many children already feel responsible for their parent’s divide, and asking them to choose between their parents publicly exacerbates the problem.

To minimize the impact on the child, judges interview minor children in court chambers. The court will question the child about his or her views on custody, residency, visitation, and parenting time. The judge sometimes allows the parents’ attorneys to be present for the interview, but it always takes place outside of the parents’ presence. If either parent requests, the court reporter will make a record of the interview.

In some cases, the judge appoints an investigator to prepare a report about an appropriate custody arrangement. The investigator meets with both parents, the child, and any other person who may have information about the child and potential custodial arrangements. The investigator will talk with the child about his or her custodial preferences and includes the child’s opinion in the custody report. Attorneys can cross-examine the investigator about the child’s preference in court as well.

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

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