When parents of minor children separate, it’s hard on both the parents and children alike. The separation creates issues such as moving residences, dividing property, and likely the most difficult: agreeing on a child custody arrangement. While many parents believe that the custody decision comes down to one parent’s wishes against the other parent’s wishes, in many states, courts are required to consider the child’s opinion as well when determining custody.
This article will explain how a child’s preference affects custody in West Virginia. If you have additional questions about the effect of a child’s custodial preference in West Virginia after reading this article, you should consult a local family law attorney.
A judge makes the custody arrangement in each case where the parents don’t reach an agreement on their own. West Virginia courts consider each of the following factors when deciding child custody:
To read more information about custody decisions in West Virginia, see Child Custody in West Virginia: The Best Interests of the Child.
The court will always consider a child’s custodial preference when the child is 14 years old or older. If the child is younger than 14, but mature enough to voice a reasoned, independent preference for one parent, the judge will consider the child’s opinion as well. The court will weigh the child’s preference along with the other factors when making the custody decision.
The judge makes the decision whether a younger child is mature enough to voice an independent preference on a case-by-case basis. The court must make some finding as to the child’s maturity before deciding whether to incorporate the child’s preference into the custody decision. For example, a judge in one case spoke to a 12 year-old boy and determined he was a good student, and had mature reasons for preferring to live with his father. The boy stated that his stepmother treated him as well as her own children, and that he had a good home and family life. The court weighed the boy’s preference along with the other factors in deciding to grant custody to the boy’s father.
In another case, however, the judge spoke with two children aged ten and 11 who had stated their preference to live with their aunt instead of their mother. The court decided that the children’s age, along with their immaturity meant that their preference should not be a factor in the custody decision.
Even if a child is mature and states a reasonable preference, the judge doesn’t have to follow that preference. The court simply needs to consider the opinion along with the other custodial factors. If the judge believes the child is better off with the non-selected parent, the court won’t follow the child’s preference when granting custody.
West Virginia judges don’t allow children to testify about their custodial preferences in court. Forcing children to state which parent they prefer in front of their parents can be psychologically harmful. Instead, courts will conduct an interview with the child in court chambers, outside of the parent’s presence. This way, the judge can minimize some of the pressure or guilt the child might feel testifying in the courtroom.
When the court conducts the interview in chambers, the judge can decide whether or not to allow the attorneys to be present. A court reporter must be present, however, to make a transcript of the interview for the case record.
Alternatively, the judge may appoint a professional, such as a custody evaluator or mental health professional, to speak with the child to determine his or her custodial preference. The professional can then submit a report to the court or testify about the child’s opinion on custody. Both parents’ attorneys can call the professional as a witness to be cross-examined.
If you have additional questions about the effect of children’s custodial preferences, contact a West Virginia family law attorney for help.