Many who have never gone through a divorce wonder whether a child gets to determine whom to live with, especially those who are just entering the process. The short answer is no. Children generally do not choose their primary residential parent. But that does not mean that the child’s preference is entirely discounted.
According to Michigan law, a child cannot decide where to live unilaterally before they reach the age of 18. Until that point, the parents, guardians, or courts decide where minors should reside. However, during custody hearings, judges consider a list of at least 12 factors when determining where a child should live. One of them is the child’s preference.
It is the ninth factor on the list and requires the judge to consider the reasonable preference of each child involved unless the child does not possess the level of maturity to express such a preference. But being ninth on the list does not indicate how much weight the judge may give it when making their custody decision. The law allows judges the discretion to weigh each factor as they reasonably see fit.
Some of the other factors on the list include the dedication of each parent to continue raising the child, the stability of the child’s environment, and the moral fitness of each parent.
How does the court determine the preference of the child in custody cases? The child sits for an interview with the judge or a court investigator. To avoid the undue influence of the parents, the interview takes place without the parents present.
During the interview, the judge or court investigator must limit their efforts to finding out the preference of the child. They are not permitted to discuss any other subject. If a judge uses collateral information taken from a child preference interview, a reversible error may occur.
The statute requires that the child have a reasonable preference of where they want to stay. So, during the child preference interview, the judge will determine whether the child’s preference is reasonable.
For example, a judge will likely give zero weight to a preference based on how lax a particular parent is. However, a preference to live with a parent who has a history of helping them with homework and general life issues is more likely to be seen as reasonable.
Is a child’s change in custody preference enough to warrant a modification in the court’s custody order? Not on its own. However, when coupled with other material factors, it may contribute to such a change.
Divorce raises a multitude of concerns relating to child custody. An experienced child custody lawyer can help you understand the issues involved and fight to ensure that your interests are represented.