Can Children Express Preference in Maryland Custody Proceedings?

Learn when children can make their own custody decisions in Maryland.

One of the most important and difficult issues that family courts must decide is a child's custody arrangement. Parents often disagree on the best custody arrangement for the child, and the child may also have a strong opinion. Many states' laws require judges to consider a child's custodial preference when making custody rulings.

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

Legal and Physical Custody in Maryland

In every custody decision, the court must determine how to allocate parental responsibility and determine where the children should live throughout the year. The court divides custody into two categories: legal custody and physical custody. Legal custody carries with it the right and obligation to make significant decisions in the child's life. The court can award legal custody to one parent or both parents together. Common decisions impacted by legal custody include a child's education, major medical decisions, and religious upbringing.

Physical custody, sometimes called parenting time, refers to a parent's right to decide where the child will live and to make decisions about the child's daily activities. Like legal custody, the court can award it to one or both parents. (Md. Code Ann. [Fam. Law], § 9.5-101.)

The Child's Best Interest

The court encourages parents to work together to create a custody plan that works best for the family. If you're able to communicate with the other parent, but have differences when it comes to custody, you may consider hiring a mediator to help facilitate your conversation. If you still can't agree, you'll need to ask the court to decide for you.

During a custody hearing, the judge will review a set of factors specifically designed to evaluate what's in the child's best interest, including:

  • each parent's fitness to have custody
  • each parent's ability to adapt to parenting duties
  • the child's age, sex, and health
  • the child's physical, spiritual, and moral well-being
  • each parent's home environment and surroundings
  • the parents' ability to communicate with one another and come to shared decisions for the child
  • the willingness of the parents to share custody
  • the child's relationship with each parent
  • the geographical proximity of the parent's homes
  • the parents' employment demands
  • the age and number of children involved
  • each parent's financial status
  • the impact of any custody decision on state or federal assistance
  • the child's preference, if the child is old enough to make a rational choice, and
  • any other factors the court deems relevant to child custody. (Taylor v. Taylor, 508 A. 2d 964 (1986).)

No single factor outweighs any other in the court's custody determination, and the judge must consider all factors as a whole.

When Will the Court Consider a Child's Preference?

In Maryland, the court must consider a child's preference if the child is old enough and mature enough to make a rational choice. It's common for children to wish their parents were reunited, which can often cause a child to express an unrealistic preference.

There is no specific age when the court must listen to the child's opinion, and the judge will decide whether a child is mature enough on a case-by-case basis. The test for whether a child is fit to voice a custodial preference is whether the child is intelligent enough to make it worthwhile to involve the child in the litigation and whether the child feels a duty to tell the truth.

The court can decide whether or not to consider a child's preference by speaking with the child and determining whether the child has an understanding of what it means to give the oath to tell the truth. The child also needs to be able to state the facts the judge needs to hear clearly. Courts have allowed children as young as five to testify about their custodial preferences.

The child's preference is not the only factor in custody cases. Courts must determine what is in the child's best interest, separate from what the child wants. If a judge determines that a child's wishes conflict with what's best, the judge must disregard the child's opinion.

The court will listen to the reasons behind the child's preference when deciding whether to give the preference weight. The judge will give more weight to mature, well-reasoned opinions than opinions based on a whim or temporary anger with one parent.

Courts will disregard superficial preferences. For example, if a daughter prefers her mother because she has a nicer house and allows her to watch more television, the court won't give that opinion much weight. On the other hand, the judge will give weight to preferences based on feelings, attachments, and the child's probable contentment.

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

Maryland courts are aware that forcing a child to testify about custodial preferences while parents are present can be psychologically damaging. Judges take various precautions to ensure that custody proceedings don't create more stress in an already difficult situation for the child.

Judges often interview children in court chambers to determine their custodial preferences. Normally, the court will ask for each parent's permission to interview the child in chambers, outside of the parent's presence. The attorneys may be present, but don't ask questions during the interview. Instead, they can give a list of questions to the judge, who can then decide which questions to ask the child.

Alternatively, the judge may appoint a guardian ad litem (attorney for the child) to represent the child's interests. The guardian ad litem submits a report to the court about what's in the child's best interests, including the child's wishes for custody.

The guardian ad litem may also testify in court about the child's preferences. The guardian's recommendation for custody doesn't have to be the same as the child's preference. The court may also allow a social worker or other mental health professionals to testify about the child's opinion on custody.

Resources

Parents looking for more information on how judges make custody decisions in Maryland, visit the People's Law Library website for helpful links, forms, and additional information.

If you have additional questions about the effect of children's custodial preferences, or if you have questions about custody trials during a divorce, contact a Maryland family law attorney for help.

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