Can Children Express Preference in Michigan Custody Proceedings?

Can children take part in the custody decision? Find out below.

Although it’s often difficult when a couple separates, it’s even harder when the couple has children. Deciding the custody arrangement can be the most difficult task for separating parents. Sometimes, the child’s opinion on custody can get lost in the process. Many states’ laws, however, require judges to consider a child’s custodial preference when determining child custody.

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

Overview of Custody Decisions in Michigan

A judge will decide child custody in cases where the parents can’t come to an agreement on their own. In Michigan, the court must consider several factors when determining custody, including the following:

  • the love, affection, and other emotional ties between the parents and the child
  • each parent’s ability to give the child love, affection, guidance, and continue the education and religion of the child
  • each parent’s ability to provide the child with food, clothing, and medical care
  • the stability of each parent’s home
  • each parent’s moral fitness
  • each parent’s physical and mental health
  • the child’s home, school, and community history
  • each parent’s willingness to encourage a relationship between the child and the other parent
  • either parent’s history of domestic violence
  • the child’s preference, if the child is of sufficient age, and
  • any other factor the court deems relevant.

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

When Will the Court Consider a Child’s Preference?

When a child is of sufficient age to express a preference, the court must consider his or her opinion before deciding custody. In Michigan, a child aged 17 or older may choose the parent he or she wants to live with. Judges must interview children aged nine or older to determine their perspective on custody. Courts will consider the opinion of a child as young as six years old if the child is mature.

A child’s preference must be reasonable for the judge to give it weight in the custody decision. This doesn’t mean that the child’s preference has to include detailed thought or critical analysis, just that it’s not based on arbitrary or superficial reasons. For example, a court won’t afford much weight to a child’s preference when he or she is simply choosing the more lenient parent or the parent with the nicer house. On the other hand, judges will weigh strongly the opinion of a child who chooses the parent who cooks, helps with homework, and attends medical appointments.

The child’s preference isn’t the determining factor in custody. It’s simply one item the judge will consider along with the other custodial factors. If the parents are essentially even in the other custodial factors, the court may use the child’s preference to break the tie. If, however, one parent having custody is clearly in the child’s best interest, the child’s opinion won’t sway the judge’s decision. Also, the court won’t use the opinion of a child to deny either parent custody.

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

In Michigan, judges usually won’t require a child to testify in court, since it can be psychologically harmful for children to sit in front of their parents and state who they prefer.

Instead, judges will speak to children informally, in court chambers to discover their custodial preferences. The court won’t allow parents to be present for the conversation. Judges aren't required to allow attorneys to be present for the interview either, although sometimes, a judge will permit them sit in. Michigan courts aren’t required to have court reporters present during these interviews, but will sometimes have them present to record everything that's said.

Although courts are required to interview children whenever they are old enough to express a preference, there is an exception to this rule. If one parent concedes that the child would prefer to live with the other parent, the court doesn’t have to speak directly with the child.

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

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