During the process of preparing for a child custody hearing, a client will often tell me, "If the judge would simply ask my child where he/she would like to live, the child would tell the judge that he/she wants to live with me." I always have to tell clients that although the feelings of a child can be taken into consideration by the court in a custody hearing, a judge does not decide custody based on a child's wishes. The court's paramount concern is the best interest of the child, not his/her wants.
Input from the child is important, however and judges are willing to interview the children involved in a custody case. Following the interview, the judge will then give the child's testimony appropriate weight depending on the child's age and sophistication. Clearly, a 16 year-old will have the verbal tools and life experience to communicate more effectively with the court than will an 8 year-old.
When the judge takes a child's testimony, he will do so in chambers and out of the presence of the parents. Generally, the only parties present in the judges chambers during the child's testimony are the parties' attorneys, the judge and the court reporter. Therefore, the child is not subjected to the pressure of testifying about his/her parents with them in the same room, thus fearing reprisal. During the interview, the judge typically asks the child questions and only when the he has finished his questioning does he allow the attorneys to ask any questions he may have missed.
Thus, there is a procedure in place where a judge can interview a child in a custody case and carefully consider his/her testimony. However, the child's wishes are only a small part of the larger picture that the judge gets through the entire custody hearing. If the court were to leave the decision up to the child, what would stop an 11 year-old boy from choosing to live with the less involved parent that has the Xbox 360? What would prevent the 16 year-old daughter from choosing to live with the parent that doesn't enforce a curfew? The child's input in a custody case is important. However, a child's priorities may not always be in their own best interests.
If you need help with a child custody matter, call my Pittsburgh legal office, Gusty A.E. Sunseri & Associates, for a free consultation.