Can Children Express Preference in Pennsylvania Custody Proceedings?

Learn more about how judges in Pennsylvania decide custody and whether a child's opinion matters.

By , Attorney · Cooley Law School
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A parent's love for a child is always unconditional, but when two parents end their romantic relationship, and they can't agree about who should have custody of their child, all bets are off. They'll have to go to court and ask a judge to make an initial custody determination about who should have custody.

Parents have the opportunity to explain their custodial wishes to a judge. But what about the child's opinion? Will a Pennsylvania court consider a child's thoughts custodial preferences, and if so, does the child have to endure the trauma of testifying in open court? Continue reading to learn more.

Overview of Custody Decisions in Pennsylvania

There are two kinds of custody in Pennsylvania: physical and legal. Physical custody refers to where the child will live, which parent will provide what kind of care for the child, and how much time each parent will spend with the child.

Legal custody, on the other hand, refers to a parent's right to help make important decisions for the child about matters like the child's medical care, education, and religious upbringing (if any). (23 Pa. Cons. Stat. Ann. § 5322.)

Legal and physical custody may be joint (divided between the parents) or sole (awarded only to one parent).

If parents share legal custody, they will make decisions together regarding the child's wellbeing. If legal custody is sole, only one parent will make the decisions. (23 Pa. Cons. Stat. Ann. § 5323.)

With joint physical custody, the parents will share significant periods of time with the child. The court sometimes refers to "joint" custody as shared physical custody.

Depending on how the judge allocates physical custody responsibilities, the court may deem one parent the primary physical custodian—the parent who spends more than 50% of the time with the child—and the other the "partial" physical custodian.

Sole physical custody means the custodial parent will have exclusive physical custody of the child and will spend most, or sometimes all, of the time with the child.

To make an initial custody determination, Pennsylvania law requires judges to consider an extensive list of factors. The court has to consider all relevant factors and can't just isolate one or two to the exclusion of the others, but judges give special consideration to factors that affect the child's safety.

The goal is for the court to figure out what kind of custodial arrangement is in the child's best interests. The factors are:

  • which parent is more likely to encourage and allow the child to have frequent and ongoing contact with the other
  • any present and past abuse committed by a parent or a member of the parent's household, whether there is a risk of abuse or harm to the child or an abused parent, and which parent can provide better safety and supervision
  • the duties performed by each parent on behalf of the child
  • the child's need for stability and continuity in terms of education, family life, and community life
  • the availability of each parent's extended family
  • the child's sibling relationships
  • the well-reasoned custodial preference of the child, based on the child's maturity and judgment
  • whether one parent has tried to turn the child against the other parent, except in cases of domestic violence where the court required reasonable safety measures
  • which parent is more likely to provide a loving, stable, consistent, and nurturing relationship that meets the child's emotional needs
  • which parent is more likely to attend to the child's daily physical, emotional, developmental, educational, and special needs
  • how close the parents live to one another
  • each parent's availability to provide care for the child or make appropriate child care arrangements
  • the level of conflict between the parents and their willingness and ability to cooperate
  • any history of drug or alcohol abuse in a parent's household
  • the mental and physical condition of everyone involved, and
  • any other relevant factor. (23 Pa. Cons. Stat. Ann. § 5328 (a).)

The law specifically prohibits judges from giving custodial preference to a parent based on the parent or child's gender. In other words, the court does not favor mothers over fathers, or for fathers over mothers. (23 Pa. Cons. Stat. Ann. § 5328 (b).)

For more information about custody decisions and family law matters, try contacting the Pennsylvania Legal Aid Network. You can also read Title 23 (Domestic Relations), Chapter 53 (Child Custody) of the Pennsylvania Consolidated Statutes to read firsthand what the custody laws say.

When Will the Court Consider a Child's Preference?

There is no minimum age threshold that prompts a judge to consider or reject a child's wishes about custody. Pennsylvania's custody law states that a child's custodial preference must be well-reasoned and based on maturity and judgment.

Although a court will try to determine a child's preference whenever possible, the child's preference won't control the outcome of the case. Depending on how rational the child is, it can be an essential consideration. For example, if both parents are equally suitable custodians, the child's preference may tip the balance in one parent's favor.

If the child can express a mature opinion, the court may take it seriously. The reasonableness of the opinion will vary with the child's age, maturity, intelligence, and the reasons the child articulates for wanting a particular custodial arrangement. For instance, if a seven-year-old child wants to stay with his father because the father has a state-of-the-art video game system, the judge would give very little weight to the child's opinion.

But if a fourteen-year-old child testified that she wanted to live with her father because her father has lived in the same home and school district for many years while the mother has moved frequently, then the court would give a great deal more weight to that child's opinion.

The presiding judge will have the opportunity to see and hear the child. If the child is very young or can't give a mature opinion, the judge does not have to force the child to testify or give the child's custodial preference any weight.

Although a judge may consider your child's opinion when deciding custody and visitation, your child's preference is only one of many factors in the evaluation. If the judge doesn't believe the child's preferred parent is what's best for the child, the court will deny the child's request.

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

If the judge decides that the child is old enough and mature enough to express a reasonable custodial preference, the court can interview the child. The judge will speak to the child in a more informal physical location, like the judge's chambers, and the child generally won't have to testify in open court.

Regardless of age, most children don't want the pressure of picking a custodial parent in front of both parents. The court recognizes that choosing a parent can be traumatizing, and in most cases, will not allow the child to testify in court.

When the judge speaks with the child, the parents' attorneys must be present and will have the right to ask the child questions. A court reporter also must be present to transcribe the questions and answers and make an official record of the interview.

At What Age Can My Child Refuse Visitation?

Contrary to popular belief, there is no specific age at which a child can refuse to see a parent or comply with a custody order. In fact, Pennsylvania law defines a "child" as an unemancipated individual under 18 years of age. (23 Pa. Cons. Stat. Ann. § 5322 (a).) So, until the child reaches 18, the court has jurisdiction—meaning, control—over when, where, and how frequently the child and parents will see each other.

Parents must comply with all court orders, or risk the court requiring a hearing where the judge can find you in violation of the court order (contempt.) Contempt of court is a serious violation that can lead to the judge ordering the guilty parent to pay fines or attorney fees, provide make-up visitation, or in the most serious cases, spend time in jail.

However, if your child is consistently refusing to go with the other parent, you are not obligated to physically force your child out of your home or into the other parent's car. If you are doing everything you can to encourage vistiation, but your child flat out refuses to go, you may want to consider family therapy or another form of intervention.

It's common for custody and visitation orders to become outdated or ineffective, especially as children grow and become more involved with friends, relationships, and school.

If your custody or visitation orders no longer serve your child's best interests, you can work with your ex-partner to change the order or, if you can't agree, you can ask the court to change it.

Modifying an Existing Order

The court is always reluctant to change orders when a child is happy and well-adjusted. So if you're requesting a modification because you don't like the other parent, but the child is happy with the arrangement, the court will deny your request.

However, judges also understand that in many cases, orders need to be changed to meet the child's needs. If you can demonstrate that there is a good reason for your request and that a modification will serve your child's best interests, the court will review your case.

When evaluating a request for modification, the court will evaluate the same factors as in an initial decision to ensure the new order benefits the child's wellbeing. (23 Pa. Cons. Stat. Ann. § 5338 (a).)

Navigating a contested custody case on your own can be overwhelming. If you're having difficulty reaching a custody agreement, you should consult with an experienced Pennsylvania family law attorney who can help you understand the process and protect your interests.

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