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Child Preference in Custody Disputes
by Steven Pradell
Parents often ask their attorneys at what age their children get to decide with which parent they want to live. Some parents are under the mistaken belief that once a child becomes a certain age, whatever custody and visitation schedule the child desires will automatically be approved of by a judge and followed by the parents.
The Alaska legislature has chosen not to set a specific age at which a child's desire to live with one parent is considered by the court. Instead, Alaska law states that the court may consider the preference of a child, if the court determines that the child is of sufficient age and capacity to form a preference. This test allows a court substantial discretion in determining, on a case by case basis, whether a particular child is old enough and articulate enough to have a meaningful preference. While it is clear that the preference of most children nearing the age of adulthood will be strongly considered, and that most preteen children will not have the capacity to form a meaningful preference, what falls in between is a gray area which can vary greatly from judge to judge in its implementation.
The Alaska Supreme Court has stated:
We have noted that as children “get older, the trial court will be more inclined to respect their preference.” And we have held that a teenager’s preference can be a deciding factor because, while a young child’s preferences are often unreliable, “a relatively mature teenager’s reasoned preference is not so lightly to be disregarded.” We have also, however, affirmed superior court decisions finding a teenager’s preference to be unreliable because it was manipulated or unduly influenced by a parent.
Even when a child's desire is considered, it is only one many factors the court must consider in determining custody and visitation. These other factors include:
• The physical, emotional, mental, religious, and social needs of the child.
• The capability and desire of each parent to meet these needs.
• The love and affection existing between the child and each parent.
• The length of time that the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
• The desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent.
• Any evidence of domestic violence, child abuse, or child neglect in the home of a parent who desires custody, or a history of violence between the parents.
• Evidence that substance abuse buy either parent or other members of the household directly affect the emotional or physical well-being of the child.
The standard the court uses in making custody determinations is the "best interests of the child." The court can consider other factors which it considers pertinent, however, the court may consider only those facts that are relevant and directly affect the well-being of the child. What all of this means is that there is no clear answer as to how much weight, if any, a judge in a divorce or custody case is going to give to the child's preference.
It may be wise to consult with an attorney about issues concerning the custody and visitation of your children. Many attorneys will consult with potential clients to answer questions and define the services they offer.
This article is not intended to provide legal advice and should not be relied on for that purpose.