I am often asked such questions as: “At what age can a child choose which parent she wants to live with?” or “Isn’t it true that a 12 year old child can choose which parent to live with?”
Based upon the frequency with which I am asked these types of questions, it’s clear that there is a preconceived layperson’s belief that children should be or are allowed to decide which parent should be the custodial parent.
In my realistic and disgruntled approach, I want to say: “Children have no rights. The courts only seem concerned about the parents’ rights.” In my experience, that seems almost, but not universally true. Technically speaking, a child has no legal 'right to choose'. By definition, minors are “legal incompetents." This means that they are not recognized by the court as being able make legally binding decisions, including decisions regarding their custody.
But the reality of the situation is this: family courts don’t want to make these decisions. Judges and referees are third parties whose knowledge of the family dynamics and of the needs and best interests of the children are logically much more limited than should be the reasoned knowledge of Mom and Dad. I’ve heard a family court judge say to Mom and Dad: “Why would you want a third party to make such an important decision that is going to impact your family life for the next 16 years?”
The “child’s right” to choose which parent to live with varies considerably from state to state. There seems to be a misconception among parents that there is a “magical age” (usually 12, 13, or 14) at which a child can “choose” one custodial arrangement over another.
The legal standard used in all states is “the Best Interests of the Child.” In many States, including Michigan, the Child Custody Act will include the child’s preference among the factors that the court needs to consider in modifying custody.
In Michigan, the judge has almost limitless latitude in deciding whether he will listen to a child’s preference and in deciding how much weight that preference will be given. But it is safe to say that in Michigan, there is no specific "age" when a child can dictate with whom she wants to live.
Every case is fact-driven and the particular circumstances of the family’s situation will matter as much or more than the child's age and the child’s preference.
In a case decided by the Michigan Court of Appeals more than twenty-five years ago, the court made this very enlightened statement:
A child custody determination is much more difficult and subtle than an arithmetical computation of factors. It is one of the most demanding undertakings of a trial judge, one in which he must not only listen to what is said to him and observe all that happens before him, but a task requiring him to discern and feel the climate and chemistry of the relationships between children and parents. This is an inquiry in which the court hopes to hear not only the words but the music of the various relationships. [Dempsey v Dempsey, 96 Mich App 276, 289; (1980)
Family lawyers wouldall agree that the older a child is, the more his or her preferences tend to influence the judge. When a 15-year-old child, for example, has a strong and reasoned preference for being with one parent, forcing that child to remain in a home where she does not wish to be could quickly lead to more serious family problems. Where domestic harmony becomes a factor, that may carry more weight in the judge's estimation than the child's preference itself.
That factor weighed heavily in the court of appeals’ review of the trial court decision in Foskett v Foskett, 247 Mich App 1 (2001). There, one of the children had a strong preference to live with the father. After interviewing all of the children in camera, the trial court changed custody of all of the children to the father. The mother appealed, challenging the trial court’s findings of fact. The court of appeals reversed, holding that the court’s findings of fact were against the great weight of the evidence and could only have been reached by the court’s reliance upon the unrecorded information that the judge gleaned in his in camera talk with the children.
In dealing with the decided preference of an older child to live with the father, the Foskett Court said:
Incumbent on the trial court therefore, is the duty to apply all the statutory best interests factors to each individual child. To fully discharge this duty, and arrive at a decision that serves a particular child's best interests, trial courts must recognize and appreciate that implicit in the best interests factors themselves is the underlying notion that as children mature their needs change.
And, as a child progresses through the different life stages, what they need from each parent necessarily evolves therewith. Thus, what may be in the "best interests" of an eight-year-old child may materially differ from the "best interests" of that child's thirteen-year old sibling. Accordingly, the best interests factors must be fluid enough in their application to accommodate these differences. Indeed, unyielding judicial adherence to the notion that a child's best interests requires that siblings remain in the same household, may very well, in some cases, create a judicial straightjacket that brings an individual child's personal growth to a screeching halt.
The Foskett panel then cited Weichmann v Weichmann, 212 Mich App 436 (1995) in which the court of appeals stated that "[w]e believe that in most cases it will be in the best interests of each child to keep brothers and sisters together.” The court ruled that “[h]owever, if keeping the children together is contrary to the best interests of an individual child, the best interests of that child will control." Id. at 440.
Generally speaking, there are a few criteria that judges typically consider to one degree or another when deciding a case where the child or children have strong preferences:
What reason or reasons does the child cite for wanting to change residences? Is the reason a valid one? Is it a significant factor or issue in the child's life? Some issues have more importance than others, such as schooling or a need for specialized medical care. Others, such as a more lenient disciplinary standard at the “preferred” home, carry less weight.
How stable and reliable is the parent the child wants to live with? If that parent is unstable or unreliable the judge will not likely approve the change. The parent the child wants to live with must be as capable, as able, and as willing to care for the child as the one the child currently lives with.
Does the child show social maturity and emotional and intellectual development? A child who shows that she is able to understand and deal with the changes involved in a modification of the custodial status quo will find the judge more receptive to giving weight to the child’s preference.
Is the child's decision or preference supported by one or both of the parents? Is the move the child requests against the wishes of either of the parents? Is there any evidence that the child has been pressured, bribed, or manipulated into requesting the move? Any evidence of “behind the scenes" interference by a parent seeking to influence the request for a change in the custodial arrangement would make the judge extremely unlikely to allow the change.
Is there evidence that the move will really serve the child's best interests in the long-term? Without a demonstration that a clear and significant benefit will be derived by the child from the change in residence, a judge will be unlikely to give approval. The benefit(s) must be obvious and long-term.
Will the move separate this child from other children in the family? Is that what is age-appropriate and otherwise appropriate for this child? What is the proposal for making sure that the all of the children spend some time together? Is that proposal realistic / workable?
How clearly and convincingly does the child articulate his or her reasons for desiring to move? The more logically and lucidly a child can explain why she wants a change in the custodial arrangement, the more likely it is that judge will pay attention to her preference. If the child appears uncertain, confused, or insincere, the judge will likely discount or ignore what the child says.
In Michigan, when requests for modification of custody or parenting time come to the courtroom, the referee or the judge will talk with the child privately "in chambers," unless the court decides that the child is too young to express a reasoned preference. Attorneys and parents are not included in these “in camera” talks. This allows the child to speak freely without fear of displeasing one parent or the other.
Usually, what a child tells a judge in chambers will be kept confidential. While it’s inappropriate for a parent to talk to a child and tell them what they should say to the judge, it would not be inappropriate in the context of parent-child or family counseling for a therapist to encourage the child to stand up for herself and to tell the judge that she wants him or her to keep her comments and her preferences confidential. In most cases, a judge or referee is likely to state in a decision something along these lines: “The court interviewed the minor child in chambers. The court finds that the child is of sufficient age and maturity to express a preference as to her custodial environment. The court gives weight to the child’s preference.” Occasionally, though, where necessary, a judge might say that the child expressed a preference and that this factor weighs in favor of the mother or in favor of the father. No specific statements the child makes should find their way into the record, however.
It is universally recognized that it is inappropriate for either parent to call a child as a witness. As with anything else, there are always exceptions to the rule, but here, those exceptions are very, very rare. Thus, unless circumstances leave no alternative, children should never be asked or required to testify. Usually, evidence related to child abuse – verbal or physical – or exposure of a child to a known sex-offender boyfriend – can be brought into the record through a protective services worker or through a counselor.
In twenty years of practice, I’ve only once called a child – a 16-year-old – to testify. In that case, Mom’s attorney objected to all hearsay evidence I tried to present under the state of mind or present sense impression exceptions to the hearsay rule. After trying to get the evidence in through three different third-party witnesses, I was left with no other alternative than to call the mother’s oldest child. When Mom’s attorney objected, the judge scolded him for not letting the evidence in through the other witnesses. I asked that the courtroom be cleared of everyone except the judge, the court recorder, the bailiff and the two attorneys. The parties legally had the right to remain in the courtroom, but I was able to obtain their consent to leave. This freed the child to speak her mind. While I regretted having to call her as a witness, I realize that, for this child, being able to testify was, in some respects, liberating.
That said, all parents should avoid putting their children in the middle. In the best of all worlds, parents would put their children’s best interests first and would never use the children as weapons to continue to punish their ex-spouses. Even having the child speak privately with the judge should be avoided, if possible. Putting stress on a child that is associated with “having to make a choice” creates immense and unfair pressure. This includes having a ‘private' talk with the judge in his chambers. This feels much like testifying to the child. No child wants to be placed in the position of being asked to choose one parent over the other. The only time parents should consider asking a child to talk privately with the judge is when the child has a genuine and voluntarily desire to speak with her.
One of the problems with the child being asked to express preferences or talk to a judge in private is that sometimes the children may be asked about or may talk about issues that were unresolved in the courtroom. It may prove difficult for a judge to ignore what a child has said, as occurred inMolloy v Molloy, 243 Mich App 595 (2000).
In that case, in the hearing before the trial court judge, there was a "he said, she said" kind of stand-off about whether the mother was verbally abusive and mentally unstable. The trial court's opinion resolved those differences in favor of the father after the judge had talked to the children privately. The trial judge's opinion conflicted with the evidence that was on the record, and the court of appeals could only conclude that it was the interview with the children and the statements of the children that were unsupported by competent evidence that had swayed the judge's opinion.
As a result, a court of appeals panel was specially convened to reconcile the conflict between the court of appeal’s decision in Molloy v Molloy, 243 Mich App 595 (2000) and Hilliard v Schmidt, 231 Mich App 316 (1998). [Hilliard allowed the trial court an incredible amount of latitude in what could be done in the in camera interviews.] This decision is found at Molloy v. Molloy, 247 Mich.App. 348 (2001). There the court held
The original Molloy panel, in compliance with MCR 7.215(I)(1), followed this Court's holding in Hilliard, supra, which held that in camera interviews to determine the reasonable preference of a child whose custody was at issue need not be limited to aiding in the assessment of that factor alone; rather, the interview may encompass any matter relevant to the custody decision. Were it not for the precedential effect of Hilliard, a majority of the Molloy panel would have reversed the trial court's decision under the best interest factors and remanded for a new child custody hearing pursuant to Burghdoff v Burghdoff, 66 Mich App 608; 239 NW2d 679 (1976), which held that an in camera hearing should be confined to those matters reasonably necessary to enable the judge to determine the preference of the child. We resolve this conflict by holding that the purpose and questioning of an in camera interview is limited to determining the child's preference.
Cases that help illustrate how trial courts could or should deal with the issue of the child’s preference are:
Foskett v Foskett, 247 Mich App 1 (2001).
Weichmann v Weichmann, 212 Mich App 436 (1995)
Molloy v. Molloy, 247 Mich.App. 348 (2001)
See the entire Michigan “Best Interest” statute