Can Children Express Preference in Washington Custody Proceedings?

Can a child's preference impact the outcome of a custody decision? Find out below.

Custody battles are notoriously difficult for separating couples. Both parents usually want to maximize their time with their children, and their opinions on custody may clash. Sometimes, separating parents forget to incorporate the child’s opinion into the equation. In most states, however, judges are required to consider children’s custodial preferences before making custody decisions.

This article will explain 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.

Overview of Custody Decisions in Washington

When separating parents don’t agree on a custody arrangement, the court must make the custody decision. Each judge must consider a host of factors when determining custody, including each of the following:

  • the strength of the child’s relationship with each parent
  • each parent’s past and potential for future performance of parenting functions
  • whether one parent has taken greater responsibility for the child’s daily needs
  • the child’s emotional needs and development level
  • the child’s relationship with siblings and other significant adults
  • the child’s involvement with his or her physical surroundings, school, and other activities
  • the parents’ wishes for custody
  • each parent’s employment schedule, and
  • the child’s wishes for custody, if the child is mature enough to make a reasonable and independent preference.

Courts give the most weight to the child’s relationship with each parent when deciding custody. To read more information about custody decisions in Washington, see Child Custody in Washington: The Best Interests of the Child.

When Will the Court Consider a Child’s Preference?

In Washington, the court will consider a child’s preference whenever that child is mature enough to make an intelligent judgment on custody. There’s no specific age when the court will listen to a child’s custodial preference, but in general, older children’s opinions carry more weight than those of young children. Older children are more likely to be able to assess their relationship with each parent, while younger children are more likely to 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. The court considers the child’s preference along with all of the other factors. If judge believes it’s in the child’s best interest to live with the non-selected parent, the court can rule against the child’s desires. If, on the other hand, the parents are equally fit to have custody, the child’s custodial preference may serve as a “tie-breaker” in the custody decision.

Courts are careful to watch parents who try to improperly influence a child’s custodial preference. If the judge believes a parent has tried to coach the child to select him or her, the judge will disregard the child’s preference when setting the custody arrangement.

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 court. 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.

The mental health professional’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, although this rarely happens. Speaking with a trained professional is usually less stressful for the child than coming into court. Also, the judge may not be properly trained in interviewing children.

When the court does interview the child, it happens privately in court chambers, outside of the parents’ presence. The court reporter must 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.

If you have additional questions about the effect of children’s custodial preferences, contact a Washington family law attorney for help.

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