Yes. In many child custody cases, a judge may consider a child's preference as a factor in its decision. The law says that at age 12, a child is of a sufficient age to form an intelligent preference about custody and visitation. Children younger than 12 may also state a preference if the circumstances show that the child is intelligent and has good reasons for its preference.
No matter the age of the child, many courts view child preference testimony with skepticism. A child may be subject to manipulation, especially if one parent has had the child isolated from the other parent for a significant period of time or if one parent has substantial financial resources and can promise the child a reward for stating a specific preference. Even if no one has tried to influence a child, the child may feel an extraordinary, inappropriate amount of pressure when asked to "choose" a parent. Some judges are less comfortable than other judges with the idea of bringing a child into their office for an interview, so child preference interviews take place in several non-exclusive formats:
- The parents may agree on what the child's preference is, even if they do not agree about what is best for the child (in other words, a parent can claim that despite a child's preference, the child's best interests would be served by an alternative arrangement)
- The child's preference may come through the child's counselor
- The child preference may come through a court-appointed attorney for the child (different from a guardian ad litem)
- The child's preference may come through a court-appointed guardian ad litem (different from an attorney for the child)
- The child may state a preference directly to the judge
A child's preference does not mean that the child will run the show. The judge has to consider the preference in light of all the other circumstances of the situation. If your child has a strong preference, you cannot take anything for granted, and you will need to prepare your evidence for your custody case as if the child may not be interviewed at all.