Can Children Express Preference in Missouri Custody Proceedings?

Learn whether a child's custodial preference has any effect on custody in Missouri.

Over half of U.S. children will witness their parents’ separation during their childhood. Separating parents must face the daunting task of determining the best custody arrangement for their children. It’s easy to forget that while each parent has his or her own custody preferences, children may have their own views on custody as well. In many states, judges are required to consider the child’s custodial preference before deciding custody.

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

Overview of Custody Decisions in Missouri

Missouri judges decide custody for each separating couple that doesn’t reach a custody agreement on their own. The court must consider each of the following factors when determining custody:

  • each parent’s wishes as to custody
  • the child’s need for a meaningful relationship with both parents
  • each parent’s ability and willingness to perform their functions as mother or father for the child’s needs
  • the child’s interaction and relationship with parents, siblings, and anyone else who affects the child’s best interest
  • which parent is more likely to allow the child frequent contact with the other parent
  • the child’s adjustment to home, school, and community
  • the mental and physical health of all individuals involved
  • either parent’s history of domestic violence
  • either parent’s plans to relocate the child, and
  • the child’s wishes for custody.

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

When Will the Court Consider a Child’s Preference?

Missouri law doesn’t state a specific age when the court must consider children’s custodial preferences. Instead, judges decide how much weight to give a child’s preference on a case-by-case basis. Generally, however, older children’s preferences will be given more weight than younger children’s opinions. When children are 12 or older, their opinions usually factor into the custody decision. The court can choose not to consider very young children’s opinions at all.

The child’s custodial preference doesn’t outweigh any other factors in the court’s decision. The preference is only one factor the judge considers; if it’s in the child’s best interests to be with the non-preferred parent, the court won’t hesitate to rule against the child’s wishes. In one case, for example, a daughter preferred to live with her mother because she wanted to be near her half-siblings. However, at the mother’s house, the daughter would have to share a room with her half-sister and her boyfriend, who were sexually active and had taken illegal drugs in front of the child. The judge ruled against the daughter’s preference and gave custody to her father.

Courts also consider the reasons why a child wants to live with a particular parent. The judge must ensure that the child’s preference isn’t based on temporary whims or anger with a parent. The child’s opinion will carry more weight if it’s based on mature reasons such as a closer relationship with one parent, or a parent’s involvement in his or her life. Also, the court won’t give a child’s preference much weight if the child’s preference changes back and forth between the parents.

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

In Missouri, parents have the right to call a child as a witness to testify about custodial preferences. The court will first ask questions to see if the child is competent enough to make a rational choice as to which parent should have custody. If the judge believes the child is capable of making an intelligent decision, the court will then allow the child to testify about his or her custodial preferences.

Alternatively, judges may interview the child in court chambers to determine the child’s custodial preference and any other information relevant to the custody case. Both parents’ attorneys can participate in the interview, so long as they don’t badger the child or make the interview unnecessarily uncomfortable. The court can limit the attorneys’ questions at any time. A court reporter must also be present to record the interview.

The judge may determine the child’s custodial preference in other ways. For example, a judge may examine the child’s diary to learn about the child’s desires. Mental health professionals who have spoken with the child may testify about the child’s wishes. Sometimes, the judge may appoint a custody evaluator, who meets with the child and prepares a report on custody issues, including the child’s preference. The court can refuse to interview a child if there’s already enough information on the record about the child’s custodial preference.

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

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