Does a Child’s Age or Opinion Matter in Custody Determinations?

Child custody can be one of the most difficult issues to resolve when parents divorce or are in separate households. Custody arrangements will have a profound impact on the life of the family, and especially the life of the child. When we talk about child custody, we are really talking about two things: legal custody, which is the power to make decisions about major issues in a child’s life; and physical custody (also called residential access), which refers to where the child lives when.

In Maryland, the District of Columbia, and other jurisdictions, the court bases custody decisions on the best interests of the child. Maryland and D.C. are among the roughly 75% of jurisdictions that take into account a child’s preferences regarding custody. At what age can a child decide custody or, more accurately, have their opinions about custody considered?

What Age Can a Child Decide Custody?

In most states, there is no legal age for a child to decide custody. Maryland is somewhat unusual in that it allows a minor child who is age 16 or older to petition the court for a change in custody so that they can live with the other parent. Even then the child does not decide, but rather has a guaranteed way to express their opinion to the judge who decides. However, a child need not be 16 for their opinions or preferences to be considered by the court.

In Maryland, courts decide on a case-by-case basis whether to take a child’s preference about physical custody into account. Courts will often take into account the preferences of preteen children, but have considered the preferences of children as young as five. In deciding whether to consider a child’s preferences, courts will consider whether the child is intelligent and mature enough to participate in the process and whether the child understands and feels a duty to be truthful with the court. The child’s opinion, when taken into account, is only one of the best interest factors upon which the court will base its decision.

In the District of Columbia, there is also no specific legal age for a child to express an opinion on custody. Courts will consider, “(t)o the extent feasible, the child’s opinion of his or her own best interests in the matter.”

Child’s Opinion in Custody Cases

Many parents want the court to take their child’s preference about custody into account, but understandably, do not want their child to have to testify in court. Forcing a child to testify about which parent they want to live with is stressful, even traumatic for the child. Fortunately, courts in Maryland and the District of Columbia have other ways of learning a child’s custody preferences without making the child testify publicly.

Depending on the circumstances, the child may speak privately to the judge in chambers, so that the judge can learn the child’s preference about custody and determine what (if any) weight that preference should be given.

One of the more common ways for a court to learn of a child’s opinion is to have an attorney or other professional speak with the child and make a report to the court. In Maryland, a best interest attorney may be appointed in some cases to investigate and represent to the court either the child’s position or what would be in the child’s best interest. A best interest attorney (also called a BIA) may communicate a child’s preference regarding custody, but is not obligated to advocate for that. In many other jurisdictions, a guardian ad litem is the name for a professional who performs a similar function to the best interest attorney in Maryland.

Courts Preference for Child Custody Matters

Courts usually prefer that, when possible, both parents be deeply involved in a child’s life. Accordingly, it is common for parents to have joint legal and physical custody. They share the right to make decisions about the child’s education, religious training, and health care, and the child lives with each parent a substantial part of the time. Less commonly, one parent might have sole legal and/or physical custody.

It is usually best for parents to reach their own agreement about child custody arrangements if they are able to. Parents know their children, their family, and their schedules in a way that no court can. Parents can negotiate custody issues on their own, or with the help of their attorneys or a mediator. If parents are unable to agree on legal and physical custody of their child, the court must make a decision.

International Considerations

If enforcement of the custody determination outside the US is important in your case, you should also be aware that certain countries require that the court express in the actual order whether it considered the voice of the children in making the custody decision, and how that voice was heard if so, and why it was not heard if not. Otherwise, the custody order may be considered unenforceable in that country.

Discuss Your Child’s Custody Preference With an Attorney

If you believe your child has an opinion or preference related to a custody issue, speak with your family law attorney to discuss the best way to make the court aware of your child’s wishes. Similarly, speak to your attorney if you believe that your spouse may be trying to convince the court that your child would prefer to live with them. Neither parent should be trying to influence, bribe, or coach the child to prefer them; in fact, doing so is counter to the child’s best interests as it places unfair pressure on the child.

If you have further questions about child custody law In Maryland or the District of Columbia, please contact Strickler, Platnick & Hatfield to schedule a consultation.