Can a Child Choose Who Gets Custody?

The short answer is no, but it would be unwise to dismiss the idea entirely.  In recent years, courts in Maryland have increasingly become more willing to hear testimony from children in order to make the determination of which parent will be awarded primary custody.  After all, the legal standard the court must consider is what would be in the best interest of the child.

It’s no surprise that this practice has come under fire.  It doesn’t take a legal scholar to identify the inherent dangers in letting a child testify on these matters.  For one, does the child demonstrate enough mental and social sophistication to understand the consequences of their testimony?  How do you measure if and when a child has reached the requisite level of sophistication?  Would you hold each child to the same standard, given that each child has a different comprehension level, even if they are the same age?

Moreover, isn’t there a distinct possibility that one or both parents are trying to sway the child’s testimony in their favor?  How credible can the child’s testimony be if the child may be threatened with punishment or incentivized with rewards?  Is there an attribute of one of the potential living situations that might sway the child one way on another?  For instance, does Dad’s house have a pool while Mom’s house has a better television?  Children are sometimes fickle:  “Has Mom or Dad been nicer to me lately?”  Is it really appropriate to entrust this type of solemn responsibility with a child, especially if it’s unclear if the child is able to comprehend long term consequences.

Maryland courts do not take these matters lightly.  If a judge were to allow a minor child to testify on the matter of custody, the judge must be sure that the child has the requisite maturity to understand what has happened, is happening, and will happen.  In all other cases, it is incumbent on the opposing parents to present their own evidence as to why it would be in the child’s best interest to live one place rather than another.  Courts will consider things like proximity to school and recreation, relationships with siblings or extended family, the ability of the parent to transport the child to his or her various activities, and even the financial situation of the custodial parent.  There is no set list of what may be considered, nor is there any one factor that will automatically be given more weight.

The takeaway from this discussion is that judges in family court have considerably more discretion in the evidence they hear and the methods they use to award things than judges in most other legal proceedings.  Family matters are complicated, fluid, and can have far-reaching consequences.  If you think your custody case may benefit from your child’s testimony, consider contacting a Maryland family lawyer for an evaluation of your case.  Your attorney can diagnose the strength of your arguments and determine whether your child’s testimony may be relevant to the resolution of the custody battle.

See related blog posts

Maryland Third-Party Custody and Visitation

Back-to-School Tips for Divorced and Separated Parents

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