Can Children Express Preference in Massachusetts Custody Proceedings?

Can children make their own custody decisions? Find out below.

When parents of a minor child separate, the toughest decision they may have to make is which parent will have primary custody of the child. You may be aware that courts must consider each parent’s views on custody when deciding a custody arrangement, but you may not realize that in most states, judges must consider the child’s custodial preference as well.

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

Overview of Custody Decisions in Massachusetts

When parents fail to reach an agreement on child custody, the court determines custody. The judge has to consider several factors before deciding custody, including each of the following:

  • whether either parent is unfit to have custody of the child
  • whether either parent has a history of abuse or domestic violence
  • whether either parent has a history of sexual abuse
  • each parent’s ability and willingness to care for the child
  • which parent has historically been the child’s primary caretaker
  • each parent’s physical, emotional, and mental health
  • the child’s health needs
  • each parent’s lifestyle, including drug or alcohol addiction
  • the sexual conduct of the parents, to the extent it may negatively impact the child
  • each parent’s religion, to the extent some practices may be harmful to the child
  • the suitability of each parent’s residence
  • the residence of the child’s siblings, and
  • the child’s preference, considering the age and maturity of the child.

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

When Will the Court Consider a Child’s Preference?

Massachusetts courts must consider a child’s custodial preference when the child is mature enough to have a rational opinion. There is no certain age when judges will consider a child’s preference. Courts will more strongly consider the opinion of older teenagers, while treating the opinions of younger teenagers and preteens with caution. A child below the age of 10 would need to be very mature for a Massachusetts judge to factor his or her opinion into the custody decision. Regardless of the child’s age, the court will only consider the child’s opinion along with all other factors; the child’s desire is not the deciding factor.

Judges are particularly careful when considering a child’s custodial preference. Parents sometimes wrongfully influence a child to select them over the other parent. Sometimes children’s statements are unreliable or fickle. The child may have immature values that cause them to choose a parent based on superficial reasons. For these reasons, courts will listen to the child’s rationale behind their preference, to determine how much weight to give the child’s preference. The more mature a child’s rationale is for preferring a parent, the more weight the court will give the preference.

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

Courts in Massachusetts believe that asking children to choose between their parents imposes a huge psychological burden on them. Because of this, judges are very careful when involving children in their parents’ litigation. Courts have a number of options to minimize the negative impact on the child while still discovering the child’s custodial preference.

Most often, courts will interview the child “in camera,” which means that the child goes to the court chambers for an informal conversation with the judge. This way, a child isn’t influenced by the looks from a parent or fear of getting in trouble for choosing one parent over the other. The parents aren’t present for the in camera interview. Attorneys can be present, but normally, the judge will ask all the questions. The court can also refuse to interview the child altogether if the judge believes a parent is pressuring the child to select him or her.

Courts sometimes appoint a guardian ad litem (an attorney for the child) to represent the child’s interests. The guardian ad litem can relay the child’s preference to the judge without the child having to appear in the courtroom. While the guardian ad litem doesn’t have to agree with the child’s custodial preference, the guardian must at least communicate the child’s preference to the court.

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

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