A parent may want his or her child to be the deciding vote in a hotly contested custody case. However, while children have a voice in custody decisions, their parental inclinations can’t be the only basis for a custody order. The best interests of the child, not the parent, are the focus of any custody ruling.
A judge determines how much weight to attribute to a child’s custody preference based on the child’s age and maturity. There isn’t a special age when a child’s custody wishes control the outcome of a custody decision. However, a judge deciding custody will seriously consider the preference a mature, thoughtful and articulate child.
Children typically don’t testify at custody trials. A child can too easily become a pawn caught in the middle of his or her parents’ custody battle. Legal protections exist to allow a child’s voice to be heard in custody matters, while still shielding a child from testifying in court.
This article provides an overview of the impact of a child’s preference on custody proceedings in Nevada. If after reading this article you have questions, please contact a local family law attorney for advice.
There isn’t a specific formula for deciding custody. Rather, parents can create their own custody agreements or a judge can craft a custody arrangement when parents can’t reach a decision on their own.
Judges are given some discretion when deciding custody. A court will look at the following factors to create a custody schedule that serves the best interests of the child, including:
The court may also examine either parent’s history of domestic violence and its effect on the stability and safety of the child. Additionally, a court may look at any factor it deems relevant to the child’s best interests. Family ties are paramount in custody decisions. Siblings are usually only separated in cases where a child’s safety is at risk. To learn more about custody decisions in Nevada, see Child Custody in Nevada: The Best Interests of the Child.
A child’s custodial wishes must be considered if he or she is emotionally mature enough to form an intelligent preference. As any parent knows, children mature differently and thus, there isn’t a certain age at which a child’s wishes have to be considered. In each case, a judge individually measures a child’s preference and maturity. Ultimately, a child’s ability to form an independent, reasonable decision is more significant than chronological age when it comes to deciding custody.
In one Nevada case, a lower court’s decision was reversed when the higher court discovered that a 13 year-old’s and 16 year-old’s custodial preferences were ignored. The lower court wrongly awarded sole custody to the mother even though the children expressed a wish to live with and visit their father regularly. The teens’ parental preference caused the court to reverse the earlier custody decision because the children were sufficiently mature and capable of voicing a well-reasoned preference.
A child’s preference can also lead a judge to award custody to a relative other than the parent. A parent typically has the first right to custody of his or her child, except in cases of abuse or where a child has been living with a relative for a significant amount of time. Nevertheless, any custody preference must be rooted in facts that demonstrate such an arrangement would serve the best interests of the child. A child’s age, emotional health and maturity will dictate how much of a role his or her custodial wishes play.
Children usually have a voice in custody trials, although they rarely testify. Typically, children are kept out of their parents’ custody battles and off the witness stand. A custodial trial could take a severe emotional toll on a child who feels split between his or her parents.
Nevertheless, a child’s preference needs to be heard and evaluated in nearly every custody case. Often, a judge will appoint a trained child professional such as a social worker, therapist or Guardian ad Litem to meet with a child individually. The child professional will report back to the court the child’s needs and preferences based on his or her interviews. The social worker, therapist or Guardian ad Litem may decide to meet with the child’s parents; however, he or she may only represent the child’s interests to the court.
In other cases, a judge can interview a child personally in his or her chambers. Attorneys and any appointed child professionals are usually welcome to attend an in chambers interview. However, parents aren’t allowed to attend judge’s interviews because of the risk that they may try to influence their child to testify a certain way. A court reporter will be present at any in chambers interview to record the child’s testimony for use at the custody trial.
If you have additional questions about the effects of children’s preferences on custody proceedings in Nevada, contact a local family law attorney for advice.