Children and Custody Disputes: Do My Child’s Wishes Matter?

This Week’s Blog by Andrew M. Eliot

Must a Judge Consider My Child’s Wishes in a Custody Dispute?

No.  It is a common misconception that Judges must consider a child’s preferences in making determinations regarding a child’s custodial arrangement.

In fact, the only factor that a Judge must consider in rendering a custody determination is the “best interests” of a child.

Will a Judge Consider My Child’s Wishes in a Custody Dispute?

The short answer is — it depends.  Under the applicable Connecticut statute pertaining to custody determinations (C.G.S. §46b-56(c), Judges may — but are not required — to consider the “informed preferences of a child,” in determining what custodial arrangement is in a child’s best interest.  In practice, and through relevant judicial decisions, Courts have interpreted this to mean that a child’s preferences shall only be considered if a child is of sufficient age and is capable of forming an intelligent preference.

How Will a Judge Determine if my Child is of Sufficient Age and Capable of Forming an Intelligent Preference?

There is no precise answer to this question and no fixed age at which a child will be deemed to automatically meet this threshold.  Rather, whether a particular child meets this initial threshold is a determination that falls within the discretion of the Judge.

However, in considering whether a child is of sufficient age and is capable of forming an intelligent preference, such that his or her custodial preferences may be considered by the Court, a Judge is likely to consider not only a child’s chronological age (though this will certainly be a factor), but also the child’s maturity level and intellectual capacity.  A Judge is likely to make such assessments by hearing witness testimony from relevant individuals (such as a child’s parents, a Guardian Ad Litem, and/or any relevant mental health professionals) and potentially considering additional evidence such as documentation relating to a child’s academic performance at school.

If my Child is deemed of Sufficient Age and Capable of Forming an Intelligent Preference, will a Judge Honor His or Her Wishes?

Not necessarily.  Notably, even if a Judge determines that it is appropriate to consider a child’s custodial preferences, he or she still has the discretion to determine that the expressed preferences of the child are not in the child’s best interest, and render orders that are contrary to the child’s wishes.

Parents should also be aware that Judges are often inclined to view the expressed wishes of a child with skepticism or distrust, given that a child who is the subject of a custody dispute may have conflicting feelings about custodial arrangements, may feel pressure from one parent (or both) to express certain preferences, and may have preferences that are subject to change at any moment.

At Broder & Orland LLC, we have extensive experience handling complex and emotionally charged custody disputes throughout Fairfield County and Connecticut and can help clients properly assess whether and to what extent a child’s wishes might be considered by the Court.