Children's Wishes During Custody Disputes

In this blog I will address how the court deals with children’s wishes in custody disputes. Our fictitious family is made up of father Randy, mother Catherine and nine year old daughter Anna. Randy and Catherine divorce four years ago and have been following the initial custody agreement. Now Catherine is seeking to have the current agreement modified because Anna has expressed unhappiness about the time she spends at her father’s house.

During the proceedings Catherine has asked the court to listen to Anna’s wishes. Catherine’s attorney has explained the judge will listen to Anna’s preferences if he feels that she is of sufficient age and capacity to intelligently tell the court her preference. As is common the judge agrees to interview Anna to determine if she is qualifies to give her opinion.

There is no set age requirement and the court begins to ask Anna questions regarding her custody preference. She tells the judge that Randy has remarried recently and she does not get along with her new step-brother. Anna tells the judge that she would rather be with her mother where it is only her and her mother.

This is a challenging issue for the judge. Here he must give due weight to Anna’s preference if he find she has intelligently expressed a preference. However in light of other circumstances it clear other public policies support not modifying the custody agreement to comply with Anna’s wishes.

In California it is accepted public policy that a child’s best interest is served by maintaining a regular and consistent relationship with both parents. In addition, the courts do not want to make orders that would discourage parents from remarrying. By taking away custody because a parent remarries it would do this.

In this situation the court may not grant a modification because of Anna’s preference. It is understandable the hardship being put on her, but not liking a stepparent is pretty common and it may not be enough to out-weight the public policy reasons. It may be possible as time goes on, Anna will have more cement reasons to give her preference. If her relationship with her step-mom continues to degrade the court may give her preference more time after a year.

The court does not want to ignore Anna’s preference, but they also do not want to modify a custody agreement in a way that would affect a child’s relationship with a parent when the preference is based on such a limited experience. In time Anna’s preference may carry more weight as she can articulate more negative experiences.