There are a number of ways to take children’s preferences into account during contested custody cases. If having a professional, or court-led, custody evaluation performed, the evaluator will usually speak with the child and may share the substance of those conversations with the parents, their counsel or testify about the child's preference during court proceedings.
Another way to share a child’s preference is for the court to appoint a special attorney for the child. In Maryland this is called a Best Interest or Child Advocate Attorney. The job of these unique lawyers involves learning and making a child's preference part of the court's record during the course of the litigation.
Sometimes a child has previously been in therapy and the parents, and the courts, are interested in what preferences, if any, the child has shared with their therapist. However, just like anyone else in Maryland, a child has the same privilege regarding mental health treatment confidentiality that adults enjoy. That said, in certain circumstances, the court can appoint a special attorney to determine if a child’s therapeutic privilege should be waived for the purpose of assisting in the custody matter.
This attorney is called a Child Privilege Attorney. If the Child Privilege Attorney determines that a child's therapist is permitted to testify during the litigation, then his or her testimony may include sharing the child's preference. If the Child Privilege Attorney determines that the privilege should not be waived, then the discussions had between the therapist and child remain confidential.
It is important to note that judges universally despise having children testify in official court proceeding and often hold decisions to bring a child into the courtroom against the party requesting to do so. However, a less-often used tool to share a child’s preference with the court is to have the judge or magistrate speak privately with the child inside the judge’s chambers. However, please note that Maryland law requires that these conversations be recorded unless the parties agree otherwise.
Ultimately, if litigation can be avoided when determining child custody matters, then a child's preference can be considered during settlement discussions. During settlement or mediation parents can enlist the help of a neutral mental health professional to speak with the child so that a child's preference can be taken into account during any settlement discussions.
Remember, the court may consider a child’s preference, but it is not bound by it. All custody decisions must be based upon what is in the best interests of the child at the time of the trial.