Can Children Express Preference in Pennsylvania Custody Proceedings?

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 that 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 know how much time they want to spend with a child, where they want a child to live, and how they want to make decisions for their child. What’s more, parents have the opportunity to explain their wishes to a judge. But what about the child’s opinion? Will a Pennsylvania court consider a child’s thoughts and desires, and if so, does the child have to endure the trauma of testifying in open court?

Overview of Custody Decisions in Pennsylvania

There are two kinds of custody in Pennsylvania: physical and legal. Physical custody is 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, is a parent’s right to help make important decisions for the child about matters like the child’s medical, educational, cultural, and religious upbringing.

Legal and physical custody may be joint or sole. If custody is joint, the parents will share time with the child and make decisions together. If custody is sole, only one parent will make the decisions and will spend most, or sometimes all, of the time with the child.

To make an initial custody determination, Pennsylvania judges have 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, although special consideration is given 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 reasonable safety measures were required
• 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 with each other
• 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.

No preference is given based on gender, and therefore there is no favoritism for mothers over fathers, or for fathers over mothers.

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?

Pennsylvania’s custody law clearly specifies that a child’s custodial preference must be well-reasoned and based on maturity and judgment. There is no minimum age threshold which prompts a judge to say that the child’s wishes will or won’t be considered. Instead, the court will try to determine a child’s wishes wherever it’s possible. The child’s wishes do not control the outcome of the case, but depending on how rational they are, they can be a very important consideration. 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, it will be taken more 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 five-year-old child wanted 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 mother because her mother has lived in the same home and school district for many years while the father 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 court is not required to hear testimony from the child or to give the child’s custodial preference any weight.

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. This means 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.

When the judge speaks with the child, the parents’ attorneys must be present. They 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.

Navigating a contested custody case on your own can be overwhelming. If you’re having a difficult time 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.