Can Children Express Preference in Washington Custody Proceedings?

Custody battles are notoriously difficult for divorcing or separating couples. Parents who can reach their own custody agreements can save time and expense by avoiding trial. However, when parents' opinions on custody clash, a judge will have to decide on an appropriate custody arrangement. Unfortunately, some parents may want their views heard while overlooking their own children's wishes for custody.

This article provides an overview of how a child's preference affects custody in Washington. If you have additional questions about a child's custodial preference in Washington, you should consult a local family law attorney.

Child Custody Decisions in Washington

When separating parents can't agree on a custody arrangement, a judge may require the couple to attend mediation. If mediation is unsuccessful, the parents will have to go to trial and a judge will create a parenting plan based on the child's best interests. Parenting plans address where the child lives (physical custody) and each parent's decision-making rights over the child (sometimes called legal custody). To determine the arrangement best suited to the child's needs, a judge must consider a long list of factors, including the custody preferences of some children.

No single factor will determine the outcome, but judges give tremendous weight to the child's relationship with each parent. Learn more about child custody laws in Washington.

Can a Child Choose Which Parent to Live With in Washington?

In Washington, the court will consider a child's preference whenever that child is mature enough to make an intelligent judgment on custody. (Wash. Rev. Code § 26.09.187 (2020).

There's no specific age when a judge will consider a child's custodial preference. Generally, however, the opinions of older children carry more weight than younger children who might be swayed by superficial factors.

Even if the child voices a mature opinion about which parent should have custody, the judge doesn't have to follow that preference. After weighing the child's wishes along with other factors, the judge ultimately makes a decision based on the child's best interests.

Judges are careful to watch out for parents who try to improperly influence a child's custodial preference. If the judge believes a parent has tried to coach the child, the judge will disregard the child's preference when setting the custody arrangement.

What Age Can a Child Refuse Visitation in Washington?

Parenting plans or custody orders will stay in place until a child reaches 18, is emancipated, or the order is modified. Before then, the children and their parents must obey the existing orders. Judges will enforce those orders when custodial parents prevent visits or even when the children themselves refuse to go along with visitation.

Of course, there may be only so much a parent can do when a teenager won't cooperate with the parenting schedule. For example, a parent would likely be expected to transport a toddler to visits even if the child was crying and screaming to avoid going. A judge probably won't penalize a parent who can't get a teenager to attend visits with the other parent, despite repeated attempts.

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

Washington courts typically don't allow children to testify about their custodial preferences in the courtroom. Rather than place the child in the difficult position of having to testify on the witness stand in front of his or her parents, judges prefer to appoint a mental health professional to interview the child and provide a report to the court. For example, a judge may appoint a custody evaluator or guardian ad litem in your case. Both professionals will interview parents and the children involved; however, only a guardian ad litem actually represents your child in court.

A guardian ad litem or custody evaluator's report will include a recommendation of what custodial arrangement is in the child's best interests, as well as the child's preference for custody. Both parents' attorneys have the right to cross-examine the professional about anything discussed with the child.

Alternatively, the court can conduct an interview the child directly in court chambers to determine the child's custodial preference. These in-chambers interviews are usually reserved for older children who are comfortable expressing a preference. When the judge interviews the child, it happens privately in court chambers, outside of the parents' presence. A court reporter will attend and record the interview so that it becomes a part of the case record unless the parents both waive the right for it to be recorded. The judge decides whether or not to allow attorneys to be present for the interview. If the court doesn't allow the attorneys to be present for the interview, the court reporter must give them a copy of the transcript so they can address anything discussed in the interview.