Can Children Express Preference in Montana Custody Proceedings?

An overview of a child’s custodial preference and its impact on custody in Montana.

As any parent knows, a child’s wishes don’t always mirror what’s in his or her best interests. Depending on where you live, judges may consider a child’s custodial preference, but that preference won’t be the sole basis of a custody decision.

In most states, judges have significant discretion when deciding how much weight to give a child’s parental preference. The preference of an older and more mature child will likely be given more consideration than a toddler or infant’s parental inclination. Nevertheless, courts are aware that some parents may coax a child to state a certain custodial preference. Legal safeguards are in place to prevent a parent from manipulating his or her child to testify in that parent’s favor.

This article provides an overview of the impact of a child’s preference on custody proceedings in Montana. If after reading this article you have questions, please contact a local family law attorney for advice.

Child Custody Basics in Montana

There is no bright line formula for determining custody. In cases where parents can’t reach their own agreement, a judge will look at the family’s circumstances to create a custody arrangement that serves the child's best interests.

A judge can consider any factor that he or she deems relevant to the best interests of the child, but the following factors are standard criteria considered in every custody case, including:

  • each parent’s desire for custody
  • the child’s wishes regarding custody
  • each parent’s relationship with the child
  • the child’s relationship with siblings
  • each parent’s mental and physical health
  • the child’s mental and physical health
  • the child’s adjustment to home, school and community
  • any history of domestic violence by either parent even if the violence was not directed at the child
  • each parent’s history of chemical or substance abuse
  • the child’s developmental needs
  • each parent’s ability to provide stability and continued care to the child
  • each parent’s failure to financially support the child, if applicable, and
  • any other factor the court deems relevant.

After assessing the above factors, a judge will create a custody arrangement that gives both parents the maximum time possible with the child, while still serving the child’s best interests. In families of multiple children, each child’s needs are considered on an individual basis. Sometimes, the custody of siblings is awarded to different parents because that arrangement best serves each child’s needs. To learn more about custody decisions in Montana, see Child Custody in Montana: The Best Interests of the Child.

When Does the Court Consider a Child’s Preference?

A court may, but doesn’t have to, consider a child’s preference when making a custody decision. There’s no magic age in Montana at which a child’s preferences will alter a custody decision. Instead, a judge will look at the unique circumstances of each case. A mature child’s parental preference will be weighted in relation to his or her age and ability to reason independently.

For instance, in one Montana case a 5 and 8 year-old’s preferences were not considered at all because the judge thought the children were too young. The judge didn’t interview either child because he felt that the children couldn’t express any independent, reasoned preference on custody due to their age. In Montana, a child’s age strongly affects how much weight is given to his or her parental preference.

However, in another case the Montana court decided that two girls, ages 11 and 13, were both of a sufficient age to formulate intelligent and reasoned opinions on custody. In this case, the court took the children’s preferences very seriously and followed the girls’ request to be placed in the custody of their father.

A judge doesn’t have to interview a child personally to consider a child’s custodial wishes. Parents can’t testify for their children, but other appointed adults can be a voice for a child. The court may appoint a professional like a child therapist or custody evaluator to meet with a child to determine a child’s preference outside of a parent’s presence. The child’s age, maturity and intellectual capacity will ultimately determine how much weight the child’s custody wishes are given.

Will My Child Have to Testify in Open Court?

A custody trial can be completely overwhelming for all involved. As a result, judges try to insulate children from their parents' custody battles and find less stressful ways to elicit information from children. Generally, a child won’t have to testify in open court, unless an emergency requires it.

A child’s custody wishes can be considered without the child even setting foot inside a courtroom. Often, a judge will appoint a trained child professional such as a social worker, therapist or custody evaluator to meet with the child and ascertain his or her parental inclination. These professionals represent the child’s best interests to the court and don’t take sides with either parent. Thus, the therapist, social worker or evaluator, rather than the child, will testify as to a child’s desires.

Alternatively, a judge may interview a child outside of the courtroom to determine the child’s wishes. Although attorneys can attend this in-chambers interview, parents are usually not allowed. A court reporter will create an exact transcript of the interview, which can be used during a custody trial.

If you have additional questions about the effects of children’s preferences on custody proceedings in Montana, contact a local family law attorney for advice.

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