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How Can a Child’s Preference Affect a Custody Determination?

The overriding priority in a child custody determination is promoting the child’s best interests. In Michigan, judges consider multiple factors to evaluate what arrangement most effectively serves that purpose. One factor that may be taken into account is the child’s own preference for living with one parent or the other. However, there are limitations on the weight a court gives to the child’s expressed wishes.

As a prerequisite, the family court must find (1) that the child is of sufficient age and maturity to be able to form reasonable preferences concerning custody and (2) that the child can communicate those preferences. The family courts generally presume that children six years and older have these abilities. However, because children develop at varying rates of maturity, the presumption is not hard and fast.

After concluding that a child is sufficiently capable of forming and expressing preferences, the judge must evaluate whether they are reasonable. For example, if the child wants to live with a “fun parent” who sets few rules or boundaries, that is not a reasonable preference since such an environment might not be conducive to the child’s best interests. Similarly, a child may state reasons that are heavily emotional or that are unduly influenced by either parent.

How a child’s preferences are ascertained is of great importance in determining the weight to be given them. Judges never have minor children testify in open court. They usually interview children in a more comfortable setting, such as the judge’s chambers or other private room. Parents are usually excluded from these meetings.

A favored method of weighing a minor child’s preferences is the use of a friend of the court (FOC) investigation. This is a process whereby a friend of the court investigator, who generally has a background in social work, evaluates the child’s capacity to form and express their preferences. The FOC then files a detailed report and recommendations to the court. Each parent is entitled to a copy of the report and has an opportunity to challenge the findings. The family court judge uses the FOC report as part of the determination of the child’s best interests.

In a child custody dispute, a child’s preference is only one of the factors set out by law for evaluating what arrangement is in the child’s best interests. Some of the other factors are each parent’s ability to provide the child with food, clothing and medical care, the stability of each parent’s home, each parent’s moral fitness and each parent’s physical and mental health. A great deal of deference is given to the parents’ opinions of what is best for their children.

Dawson Family Law, PLLC in Sterling Heights, Michigan focuses on family and domestic relations law in the greater Detroit area. If you have a child custody issue, contact us online or call 833-671-4445 for a free initial consultation.

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