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Consulting Children on Custody and Visitation Issues

Courts decide extremely difficult and challenging custody and visitation matters for divorcing parents based upon the "best interests of the child" test. The "best interests of the child" legal standard encompasses a multitude of broad and varied factors, including, but not limited to:

  • child's age
  • child's gender
  • child's mental health
  • child's physical health
  • parents' health
  • lifestyle of parents
  • social life and factors related to parents
  • love between parent and child
  • emotional bonds between parent and child
  • parents' ability to provide for child's needs for food, shelter, clothing, and medical care
  • quality of schools in the area where parents reside
  • ability of parent to foster healthy relationship between child and her other parent
  • willingness of parent to foster healthy relationship between child and her other parent
  • environment's stability
  • preference of the child, usually if the child's age exceeds 12

Thus, although not a single controlling factor, a child's preference is indeed taken into account and considered by courts in making the difficult determination of awarding custody and visitation rights. Significantly, the child must be at least a teenager and older than age 12 in order for her preference to be considered by the courts in making such a determination. As such, courts assume that the requisite levels of maturity, truth-telling, and decision-making are found in teenagers to be able to decide parental preference for their living arrangements and articulate that preference in a high-pressure environment such as the witness stand or en camera in judge's chambers.

Preference of Younger Children

A court's custody or visitation decision may be deemed reversible error if the judge refuses to hear the child's preference during the decision-making process. Of course, the court has discretion to inquire of a child as to preference outside of the company of the parents. In some jurisdictions, children as young as age 5 or 6 years may be consulted by the court as to their preferences, and children ages 10 to 12 years are entitled to have their opinions and preferences heard and given weight by the court in contested custody proceedings.


It is important to note that custody and visitation are never final decisions. At any time, as circumstances and situations warrant, parties can go to the courts to seek modifications. Similarly, a child's original preference for a custodial or visitation arrangement can be changed at any point with circumstances and situations. Finally, the court also has the power to appoint counsel specifically and especially for a child in contested custody cases.