WHEN DOES A CHILD GET TO PICK WHICH PARENT THEY LIVE WITH?

When child custody and parenting time must be determined, the court must decide what is in the child's best interest. Section 23-3203 sets out a list of factors the court may consider, along with other relevant criteria. Among these factors are the child's desires. Below is a brief discussion of this factor and its role in determining child custody.

When Is A Child’s Preference Considered?    

The statute makes clear that a child’s choice should be a relevant factor in certain circumstances. The child must be of “sufficient age and maturity.” This standard is somewhat fluid and will depend on each child rather than on age. However, courts will generally view pre-adolescent children with suspicion. Age is only half the equation; maturity is the most crucial aspect. If a child is considered incapable of judging what is in his or her best interest, maturity is lacking, and the child’s desires will generally not be considered. The court will also consider how easily the child can be manipulated through gifts or threats, as well as any indication that one or both parents have attempted to sway the child’s favor.

To determine whether a child is mature enough to have a sound preference, the presiding judge will often meet with the child. These meetings, authorized under Section 23-3209, are generally conducted in the judge’s chambers in camera—meaning no parents or attorneys may be present. A record of the interview will be made and provided to the parents (and their attorneys), but sealed from the general public. The child is interviewed alone, in a less formal setting, to increase comfort. This is done to get the best, honest impression of the child’s maturity and desires. The parents are kept out to encourage the child to be honest about his or her feelings without fear of hurting mom’s or dad’s feelings. Finally, the judge will want to determine the reasons for the child’s preferences. This can ensure that the child understands the consequences of custody, which helps determine the child's best interests.

Though in-camera interviews are the preferred method of determining a child’s maturity and preference, it is not the sole manner of doing so. Parents may request that counsel be allowed to attend the interview and possibly even ask the child questions. The ultimate decision is left to the judge, considering the best way to avoid potential harmful effects on the child. This concern for the child's safety trumps any interest in attending the proceeding, so that neither parent may demand attendance, whether in person or by counsel.

What Weight Does The Child’s Preference Carry?    

The weight given to the child’s preference depends on several factors. Again, the court's ultimate goal is to determine what is in the child’s best interest. Thus, even if a child is found to be mature enough to submit his or her opinion, the court may still give it little weight if the child’s judgment is considered too short-sighted. The child’s reasons for his or her preference are strong indicators of this, as well as other relevant information on what weight the preference should be given.

When the child’s preference is given little weight, the court may grant custody contrary to the child’s desire. For example, the court In re Marriage of Austin granted custody to the mother despite her moving to Topeka and the child’s desire to live with her father. The court decided to give the child’s preference little weight because she admitted her choice was primarily motivated by a desire to stay with her friends, rather than by more appropriate considerations. Additionally, the decision on how much weight to give a child’s preference will rarely be overturned on appeal, as the Kansas high courts will defer to the trial judge's credibility call. Finally, the Kansas Supreme Court has noted that “objective evidence” will generally carry more weight than a child’s preference, even when that child shows great maturity and thoughtfulness. Thus, in Greene v. Greene, the child’s wishes were outweighed by objective evidence of the father’s anger issues and past difficulties meeting his daughter’s needs.

A child’s desires are a statutory factor for the court to consider. However, the ultimate deciding factor will always be the best interest of the child. Several factors weigh on whether a child’s opinion should be heard and how decisive that choice is. Contacting experienced counsel is essential to ensure that the court properly considers a child’s preference and understands the forces and factors that have led the child to his or her choice.