A child’s preference is a relevant factor for the court to consider when deciding a custody arrangement (schedule and decision-making). The child’s preference is but one of many best interests factors the court is supposed to consider when deciding custody.
A prior post discusses How the Child’s Voice is Heard. This post moves from the “how” to what weight is given to the child’s preference.
In Ross v. Pick, 199 Md. 341 (1952), the Court of Appeals stated:
“[T]he child’s own wishes may be consulted and given weight if he is of sufficient age and capacity to form a rational judgment…. But we adopt a rule that there is no specific age of a child at which his wishes should be consulted and given weight by the court. The matter depends upon the extent of the child’s mental development. The desires of the child are consulted, not because of any legal rights to decide the question of custody, but because the court should know them in order to be better able to exercise its discretion wisely. It is not the whim of the child that the court respects, but its feelings, attachments, reasonable preference and probable contentment.”
Leary v. Leary, 97 Md.App. 26 (1993), sums this up:
“When a child is of sufficient age and has the intelligence and discretion to exercise judgment as to his or her future welfare, based upon facts and not mere whims, those wishes are one factor that, within context, should be considered by the trial judge in determining custody.”
When a child expresses a desire not to live with or spend time with a parent, the court is not bound by this. In Boswell v. Boswell, 352 Md. 204 (1998), the Court of Appeals stated: “visitation cannot be denied to the non-custodial parent simply because the child says he or she does not want to spend time with his or her mother or father.”
Taylor v. Taylor, 306 Md. 290 (1986), cautions: “The reasonable preference of a child of suitable age and discretion should be considered. In addition to being sensitive to the possible presence of the “lollipop” or “rescue” syndromes, the trial judge must also recognize that children often experience a strong desire to see separated parents reunited, and this motivation may produce an unrealistic preference for joint custody.”
Ultimately, it is up to the Judge or Magistrate hearing the case to decide what weight to give to the child’s wishes. When considering weight, the court will often look at the child’s age, judgment, reasoning, maturity, and the likelihood of parental influence.
Not every child has a preference. Just because the court can take preference into consideration does not mean that a child must have or express a preference. No preference usually is treated as a neutral factor.
Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law. You can follow her on Linked In, Facebook, LindsayParvis.com, and subscribe to her Newsletter for discussion, news, and developments in Maryland family law.