How A Child's Preferences Play Into A Custody Battle

21 June 2021
 Categories: Law, Blog


If you are currently going through a divorce with children, you will come to a point where a decision has to be made about how custody will work. However, you're likely wondering if your child has any say in the matter. Here is what you need to know about the child's wishes during a divorce. 

A Judge Can Interview Your Child

If you are dealing with a child that is very young, it is possible to make a request that the judge interviews the child to help determine their custody preferences. This interview will be done in private in the judge's chamber, but there can be somebody present to help document the interview for court records if it is requested. 

The purpose of this interview is to ask the child questions about which parent they want to live with. The judge may ask questions about their home life as well, including who helps the child with things like homework, bedtime, baths, and even taking the child to activities. The judge is under no obligation to follow the child's wishes but, instead, to do what is in the best interest of the child. Having the information from the personal interview can definitely help sway a judge's decision, but the judge does not need to follow the child's wishes. 

A Judge May Be Required To Perform An Interview

While interviewing a young child can be requested by parents or lawyers in a custody battle, it is often up to the judge to determine if they want to do the interview. This is based on the maturity level of the child and their age. However, there may come a point where an interview is required to be done if any party asks for one. State laws will determine the age at which an interview must be done if it is requested. 

A Jury Trial Will Not Allow For A Child Interview

If you have a custody battle that is being decided by a judge, then an interview can take place due to the judge making the final decision about custody based on the child's best interest. However, this is not the case if you are having a jury make the decision for you. Having a judge perform a private interview would not work in this situation due to the logistics of how that information from the interview gets conveyed to the jury, and a jury is not allowed to interview the child directly either. If you feel that your child's preferences could sway a decision, then you definitely don't want to have a jury make the decision for you. 

Reach out to a divorce attorney to discuss your options.