Child’s Wishes in Massachusetts Child Custody Cases

A frequently asked question that comes up in cases involving child custody is whether a judge will consider the wishes of the child when making a custodial determination.  This is a complex question, but this article describes some of the things that a court will consider.

The Best Interest of the Child Standard

When parents are unable to come to an agreement on child custody, the decision will be left to a judge. In Massachusetts, judges base their custody determination on “the best interest of the child” standard.  (See, for example, G.L. c. 208, § 31, “the happiness and welfare of the children shall determine their custody”). Under this standard, judges are provided broad discretion when determining a custody arrangement and in doing so will consider many of the following factors:

• Parental fitness;
• Age and sex of the child;
• History of abuse (mental, physical, or sexual);
• Child’s health needs;
• Parent’s physical, emotional, and mental health;
• Religion and culture beliefs;
• Parent/child relationship; and
• Expressed preference of a mature child.

Generally, if there are no safety concerns with either parent, but the parents are unable to agree on a custody arrangement that serves the child’s best interest, then it is possible that a judge may consider a child’s preference. In Massachusetts, a judge may decide to consider a child’s custodial preference in a situation where the child is mature enough to have a logical opinion. Judges navigate these waters with extreme caution to ensure that neither parent is unduly influencing the child’s decision and that the child’s opinion is not built on false expectation or adolescent ideals.  Most importantly, courts never want a child to participate in a child custody case unless absolutely necessary and so long as the child will not be emotionally traumatized by the event.  A child’s age does not always reflect their maturity, therefore, there is no specific age requirement for when a judge will consider a child’s preferred custody arrangement.

For example, in one Massachusetts case, although it was not given decisive weight, the Court considered the custody preference of a ten-year-old boy.  See Bak v. Bak, 24 Mass. App. Ct. 608, 631 (1987).  In this case, the trial court reviewed many factors such as the child’s success in school and his close relationship with his sister and other familial support from relatives who lived in Massachusetts, and determined that it would be in the best interests of the child to stay in Massachusetts.  Although this was contrary to the ten-year-old boy’s preference, the trial court concluded that other factors outweighed the boy’s preference to remain in Germany with his father.  On review, the Mass Appeals Court affirmed the trial judge’s decision.

In another case, the Massachusetts Appeals Court held the trial judge abused his discretion by relying solely on the preferences of the two 11-year old children to establish custodial rights. See Ardizoni v. Raymond, 40 Mass. App. Ct. 734, 737 (1996). Upon review of the entire record, the Appeals Court found no evidence from which the judge properly could have concluded that a split physical custody arrangement would be in the children’s best interests.  Indeed, the evidence – including the opinions and recommendations of the various witnesses plus the twins’ reported statements about being separated from each other – is to the contrary. (See also Custody of Vaughn, 422 Mass. 590, 598 (1996), where the court considered the preference of an 11-year-old child but was not given decisive weight).

How is a Child’s Preference Handled by the Court?

If a judge deems it appropriate to consider a child’s custodial preference, they will approach the situation with a great deal of caution. To help ensure a healthy environment for the child, the judge may ask to have a one on one conversation with the child. The court refers to this as an “in camera” interview.  An “in camera” interview is a very informal conversation between the judge and the child, that usually takes place in the judge’s chambers. The judge will ask the child a series of questions that will help the judge better understand the child’s preference. Speaking to the child “in camera” allows the judge to have a very honest conversation with the child without any undue influence from his or her parents.

In some cases, a judge will appoint a guardian ad litem (GAL) to help better understand a child’s custody preference. A GAL will conduct an extensive investigation, that includes interviewing the child. The GAL will gather insight as to the child’s preference and provide the court with recommendations regarding custody and parenting plans. For a more in-depth understanding about a GAL’s role in custody cases, click here.

Alternatively, the Court may appoint an ARC attorney to represent the child, and that attorney can advocate the child’s wishes during the proceeding.

Finally, the Court has the option of ordering the Court’s probation office to interview a child and provide a report to the Court.