Family Law

Your Child's Wishes May Count in Child Custody Agreements

When parents get divorced or breakup, child custody is one of the most important matters for the parents and the courts to deal with. Often, parents agree on custody arrangements by working them out between themselves, through their lawyers or through mediation.

Sometimes, however, the parents can't agree and the custody decision is made by a court. When making that decision, a court looks to many factors, and sometimes your child's preference or wishes is one of those factors.

Your Child's Preference & Best Interests

In all custody disputes, the courts look to the child's best interests when making custody awards. The focus is what custody arrangement is best for your child's overall well-being. In most states, courts are required to look at a list of factors when determining the child's best interests.

In some states, such as Illinois, your child's preference or wishes are one of the factors. In North Carolina and other states, however, courts don't have to consider your child's preference, although courts may decide to factor it in when making custody decisions.

Again, it's important to remember that the court's decision will be based on the best interests of the child, even if it takes your child's wishes into consideration. In determining best interests, a judge may ask about the child's life in general, including school, friends, life with the current custodial parent and the child's feelings about the noncustodial parent.

It's important to check the laws in your area or talk to a divorce attorney for specifics on how your child's preference might factor into your child custody dispute.

Weight of Your Child's Wishes

No child custody dispute is based solely on a child's preference as to which parent the child would like to live with. How much weight or importance a court gives to your child's wishes depends on many factors, such as:

  • The child's age and maturity level
  • The reasons for the child's preference
  • Hostility of the child toward either parent
  • Preferences of other siblings

Courts May Give Less Weight to the Child's Preference

In certain situations, courts place less weight on a child's preference. For instance, courts look at whether a parent has used undue influence. This means that a parent has steered the child's opinion by abusing the parent's role or authority. Undue influence could include obvious actions, such as making threats or offering bribes. It also includes subtle actions, like making a child feel guilty.

Courts also have to determine whether one parent has turned the child against the other parent by being hostile toward the other parent and whether that's the reason for the child's preference.

A court could place less weight on the child's preference if family-life factors influenced the child's preference. For instance, a parent's proposed move or relocation may influence a child's preference simply because the child doesn't want to change schools or lose contact with friends.

Courts Have Reasons, Too

Besides influence or pressure by parents, courts consider other factors that may override your child's preference as to custody. For instance, a court may give less weight to your child's wishes based on:

  • Reluctance to change the existing custody arrangement and the stability and structure it gives your child
  • Desire to keep the child with siblings
  • The obvious need for care and attention that only the current custodial parent can provide

Again, the main focus is the best interests of your child. Your child's wishes will be given little weight if, in the overall scheme of things, your child's preference and best wishes don't match up.  

Parents, Try To Work It Out

As parents, you both want what's best for child. And, while you may not realize it, you both probably know deep in your hearts what custody arrangement would be best for your child and fair to each of you. Focus on your child, and forget about "getting back" at each other, and you may be surprised at how easy it is to find the right solution for everyone.

Questions for Your Attorney

  • How old does a child have to be before a court will consider the child's preference?
  • How can I prove that I am the more fit parent to receive custody of our child?
  • How can we prove that our child's preference is not just a passing desire, but has been our child's preference for a long time?
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