Can Children Express Preference in Massachusetts Custody Proceedings?

Learn more about when a judge will consider a child's preference in custody hearings.

When parents of a minor child separate or divorce, 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. Still, you may not realize that in most states, judges can 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

In Massachusetts, parents (or judges) must determine two types of custody: legal custody and physical custody. Legal custody refers to a parent’s right to make decisions regarding the child’s welfare and health. Common topics for legal custody include a child’s schooling, religious upbringing, and major medical decisions.

Physical custody refers to where the child will spend most of the time throughout the year. Judges can award both types of custody to one (sole) or both parents (shared), depending on what’s best for the child. (Mass. Gen. Laws ch. 208, § 31).)

The Child’s Best Interest

When parents fail to reach an agreement on child custody, the court must decide. The most significant consideration for judges is what is best for the children. Massachusetts law doesn’t list a specific set of factors for judges to consider. Instead, all courts must evaluate the child’s health, safety, and general wellbeing as a primary consideration.

Although there’s no specific list of factors the court must assess, common factors may include:

  • 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.

When Will the Court Consider a Child’s Preference?

It’s common for parents to ask at what age their child can decide custody. In Massachusetts, children can’t “decide” where they will live until they are at least 18 years old. However, Massachusetts courts must consider a child’s custodial preference when the child is mature enough to have a rational opinion.

While there is no specific age when judges will consider a child’s preference, judges tend to give the opinions of older teenagers more weight. A child below the age of 10 would need to be very mature for a Massachusetts judge to factor the child's preference into a custody decision.

Regardless of the child’s age, the court will only consider the child’s opinion along with all other factors. In other words, the child’s desire is not the deciding factor in any custody hearing.

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 cautious when involving children in their parents’ litigation. Courts have many 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 express an opinion.

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.

Resources

If you and your ex-partner agree on how to allocate custody and visitation, you can present a parenting plan to the court, and the judge will sign it to become an order. The only time the court won’t approve a plan is if the judge believes it doesn’t serve the child’s best interest. If you have questions about what you should include in the agreement, or if you would like to make sure it protects you, consult with an experienced family law attorney before you sign.

The Massachusetts Court website contains helpful links, information, and forms for parents who wish to learn more about child custody and visitation.

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