Depending on the child’s age and maturity level, his or her wishes can be an important factor in deciding custody. Some judges do not even listen to the preferences of a child under the age of seven because they assume the child is too young to express an informed preference.

A court is more likely to follow the preferences of an older child, although the court will want to assess the quality of the child’s reasons. If a child wants to be with the parent who offers more freedom and less discipline, a judge is not likely to honor the preference. A child whose reasons are vague or whose answers seem coached also may not have his or her preferences followed.

On the other hand, if a child expresses a good reason related to the child’s best interest—such as genuinely feeling closer one parent than the other—the court probably will follow the preference. Although most states treat a child’s wishes as only one factor to be considered, two states (Georgia and West Virginia) declare that a child of fourteen has an "absolute right" to choose the parent with whom the child will live, as long as the parent is fit. [EDITOR’S NOTE: This is changing in Georgia for cases filed after January 1, 2008; after that date, the judge will consider the child’s preference but will not be bound by it if it is not in the child’s best interest. FOR MORE INFORMATION, see my posts at http://www.gafamilylawblog.com/family_law_legislation/index.html]

If a judge decides to talk with the child, the judge usually will do so in private—in the judge’s chambers rather than in open court. Generally, the parents are not in the room when the judge talks to the child, although the parents’ attorneys might be. In some cases, the judge may appoint a mental health professional, such as a psychologist or social worker, to talk to the child and report to the court.

SOURCE: American Bar Association