WHEN DOES A CHILD GET TO PICK WHICH PARENT THEY LIVE WITH?
When child custody and parenting time must be decided, the court is tasked with deciding what is in the best interest of the child. Section 23-3203 sets out a list of factors the court may consider, along with other relevant criteria. Included in these factors are the desires of the child. 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 rather fluid and will depend on each particular child rather than a particular age. However, courts will generally view pre-adolescent children with suspicion. Age is only half of the equation, with maturity being the most important 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 if a child is mature enough to have a sound preference, the presiding judge will often conduct a meeting 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 and in the less formal setting of chambers to increase the comfort level. This is done in hopes of getting 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 consequences of custody, which is helpful in determining the best interests of the child.
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 safety of the child trumps any interest in attending the proceeding, so neither parent may demand attendance by themselves or counsel.
What Weight Does The Child’s Preference Carry? The weight given to the child’s preference depends on a number of factors. Again, the ultimate goal of the court is determining 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 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 largely motivated by a desire to stay never her friends, rather than more appropriate considerations. Additionally, the decision of what weight to give a child’s preference will rarely be overturned on appeal, as the Kansas high courts will defer to the credibility call of the trial judge. 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 to be. 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.