Custody battles are notoriously difficult for divorcing or separating couples. Parents who are able to reach their own custody agreements can save a lot of time and expense by avoiding trial. However, when parents' opinions on custody clash, a judge will have to decide an appropriate custody arrangement. Unfortunately, some parents may want their views heard while overlooking their own children's wishes for custody.
This article provides and 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.
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 will consider several factors when deciding custody, including:
No single factor is determinative in your case; however, Washington courts give tremendous weight to the child's relationship with each parent. If a judge is deciding whether shared or joint parenting time is appropriate, he or she may also consider the parents' working relationship and their geographical proximity. To learn more about custody decisions in Washington, see Child Custody in Washington. See also Wash. Rev. Code § 26.09.002 (2020).
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 generally older children's opinions carry more weight than those of young children. In Washington custody decisions, the age of 12 is often when judges will give a child's preference more weight. 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. A judge may consider the child's preference along with all of the other factors relevant to that child's best interests. For example, 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.
Parenting plans or custody orders will stay in place until a child reaches 18, is emancipated, or the order is modified. Visitation is designed to benefit the child, not the child's parents. There's not a set age at which a child can refuse visitation. A judge will enforce visitation orders or even hold a parent in contempt if that parent is preventing visits between the child and the other parent. However, when a child balks about attending visits, there's only so much that parents (or a judge can do).
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. The judge may encourage the child to attend visits and examine whether abuse is causing the child to refuse visits. Nevertheless, a courts will stop short of threatening a child or sanctioning a parent when an older, independent child is simply refusing visitation.
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's 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.