What Role Does a Child’s Preference Play in Custody Determinations?

The most difficult challenge for many parents who are going through a divorce, or attempting to establish a parenting plan when there was no marriage, is reaching an agreement on child-custody and visitation terms. In the event that consensus cannot be achieved, the judge must set the parameters of the parenting plan based on what the judge determines to be in the best interests of the parties’ children. Any relevant information can go into this evaluation, but Kansas law lists a series of factors that must be considered. 

The third statutory factor is “the desires of a child of sufficient age and maturity as to the child’s custody or residency.” While a child’s preference can play a role in custody decisions, it is not the sole determinant. Generally, older children—such as teenagers—are more likely to have their preferences considered than younger children, though there is no strict age threshold. However, regardless of the child’s age and maturity, the judge is allowed to go against their wishes. 

The court typically evaluates whether the child’s preference is well-reasoned and untainted by external factors, such as efforts at parental alienation. If the judge believes the child is simply choosing a parent who is more permissive or lenient, they might give less weight to the preference. In contrast, if the child’s wishes seem to stem from genuine emotional bonds and a clear understanding of their best interests, the court may the child’s wishes more consideration.

During a custody case, the child’s input may be gathered in various ways, depending on the circumstances. In some cases, a judge may conduct a private interview with the youth, outside the presence of both parents. This is done to ensure the child feels comfortable speaking openly. In other cases, the child’s views may be expressed through a guardian ad litem or an independent evaluator.

While a child’s preference is important, it is only part of the calculation that also includes factors such as:  

• The emotional relationship between the child and each parent
• Whether the child would need to adjust to a new home, school, and community
• Each parent’s willingness and ability to abide by custody terms and cooperate with the other parent
• Any history of abuse, neglect, or domestic violence

If you are facing a custody dispute and have questions about how your child’s preference might affect your case, contact an experienced Kansas family law attorney at The Henry Law Firm, P.A. You can make an appointment by calling 913-381-5020 or contacting us online. Our office is in Overland Park.