Can Children Express Preference in Wyoming Custody Proceedings?

Overview of Wyoming Custody Laws

The two main concepts in Wyoming child custody laws are "legal custody" and "physical custody". "Legal" custody has to do with making important child-rearing decisions, such as nonemergency medical care, educational choices, and whether the child will practice a certain religion. "Physical" custody refers to where the child will live.

There are subcategories that define how legal custody and physical custody are shared between parents, which include "sole" custody and "joint" custody. With sole legal custody, only one parent has major decision-making authority. When joint legal custody is in place, both parents have a say in decisions regarding raising the child.

In a sole physical custody scenario, the child resides with one parent. With joint physical custody, the child lives with each parent for certain periods of time, which can be anywhere from a few days a week to several months at a time. (Wyo. Stat. § 20-2-201 (d).)

If parents aren't able to agree on custody, the court will make the decision for them. Often, judges will require a custody evaluation by trained personnel to assist them in making their decision.

The main thing to remember regarding custody cases is that the best interests of the child will always be a judge's primary concern.

What Do We Mean by the Best Interests of the Child?

In order to assist the court in deciding what is in a child's best interest in a particular case, Wyoming law provides a list of factors for judges to consider. Some of these are:

• the quality of the child's relationship with each parent
• each parent's ability to provide adequate care for the child, including arranging for the child's care by others as needed
• the relative competency and fitness of each parent
• each parent's willingness to accept all responsibilities of parenting, including a willingness to accept care for the child at specified times, and to relinquish care to the other parent at specified times
• how the parents and child can best maintain and strengthen a relationship with each other
• how the parents and child interact and communicate with each other, and how such interaction and communication may be improved
• each parent's ability and willingness to allow the other to provide care without intrusion, and to respect the other parent's rights and responsibilities, including the right to privacy
• the geographic distance between the parents' residences
• each parent's current physical and mental ability to care for the child, and
• any other factors the court deems necessary and relevant. (Wyo. Stat. § 20-2-201(a).)

The law also states that evidence of domestic violence, including spousal abuse or child abuse, is automatically considered to be contrary to the best interests of the child. (Wyo. Stat. § 20-2-201(c).)

Note that a parent's military status may also impact custody. (Wyo. Stat. § 20-2-205.)

At What Age Can a Child Decide Which Parent to Live With in Wyoming?

That's something of a trick question, because normally a child—meaning someone under the age of majority, which is 18 in Wyoming—doesn't have decision-making power when it comes to custody. (Wyo. Stat. § 14-1-101.) That said, this doesn't mean that children under 18 can't express an opinion as to which parent they'd rather live with.

Case law in Wyoming has held for quite some time that a child's preference is a factor for a judge to consider in rendering a custody decision. There are conditions, however, not the least of which is that the court has to conclude that the child is of sufficient age and maturity to make a reasoned request.

A Wyoming Supreme Court case lists some of the factors a judge should consider in weighing a child's preference, including:

• the child's age
• the reason for the preference
• the relative fitness of the preferred and non-preferred parent
• the hostility, if any, of the child to the non-preferred parent
• the preference of other siblings, and
• whether the child's preference has been tainted or influenced by one parent against the other. (Demers v. Nicks, 2016 WY 13 (Wyo. 2016).)

The last item on the above list is especially significant because, unfortunately, that type of behavior places the child in the middle of the custody dispute, and can emotionally damage a child.

As a practical matter, a court is likely to minimize a child's wishes if it determines that one parent was constantly disparaging the other in front of the child, or if it appears a parent attempted to bribe the child, such as with promises of gifts.

You should be aware that although children's preferences may be reasonable and mature, courts don't have to abide by them. Once again, the court's primary concern is the child's welfare. So if a judge believes it's in a child's best interest to live with the parent the child didn't select, the judge won't hesitate to make that call.

If you have a question as to what age a child can refuse visitation in Wyoming, the same criteria used in a child's custody preference applies. The child has to be at least 18 years old to have final say.

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

Although it's ordinarily legally permitted, judges tend to frown on having a child testify in open court. It's an intimidating environment, especially for younger children. Instead, judges prefer to interview children in chambers (the judge's office), outside of their parents' presence. It's already difficult for children to state which parent they prefer to live with; it can traumatize them to have to choose between their parents in front of them.

In Wyoming, when courts want to interview children privately in chambers, they'll ask the parents' permission. If there's an objection, the judge has a few other options. The court can allow the attorneys to be present for the in-chambers conversation, or it can have a court reporter record the interview. The object is to preserve a parent's due process rights, while still protecting the children.

Courts may also appoint third-party professionals, like custody evaluators or psychologists, to speak with children about their custodial preferences, and report back to the court. (Kes, f/k/a Ket v. Cat, 2005 WY 29 (Wyo. 2005).)