By Nelson A. Garcia, Esquire; 301.563.6685
One question I have heard very often in my child custody consultations over the past 20+ years is: “When can a child decide which parent to live with?” In Maryland, Courts are to apply the “best interests of the child” standard in deciding custody issues as developed by case law. In Montgomery County v. Sanders, the Maryland Court of Appeals set the factors for determining custody in general. In Taylor v. Taylor, it outlined factors for determining joint custody, both physical (how much time the child will spend with each parent) and legal (making decisions about their everyday needs). In each of these lists, the “Preference of the Child” is listed as the fifth factor to be considered.
How strongly the child’s preference will be considered by the Court, or if it will be considered at all, depends greatly on the age of the child. Maryland is somewhat unique in that it allows your child to take matters into their own hands at the age of 16, by allowing them to petition the Court for a change of custody if they’re unhappy with the arrangement ordered in your decree. If your child does this, however, it doesn’t mean the Court won’t consider the other best interest factors. Your child has the burden of proof to establish that such a change supports their emotional and physical well-being. But even in a hearing for an initial order for custody, the Court will usually honor the wishes of a minor child who is at least 16 years old, unless shown by the other parent to not be in the child’s best interest.
There are no specific criteria that a judge must consider when the child or children have a preference regarding custody, but they generally include: What reason or reasons does the child cite for wanting to change residences? Is the reason a valid one? Is it a significant factor or issue in the child’s life? Some issues have more importance than others, such as schooling or a need for specialized medical care. Others, such as a more lenient disciplinary standard at the “preferred” home, carry less weight. How stable and reliable is the parent the child wants to live with? Does the child show the social maturity and emotional and intellectual development necessary to deal with the changes involved in a modification of custody? Is the child’s decision or preference supported by one or both of the parents? Is the move the child requests against the wishes of either of the parents? Is there any evidence that the child has been pressured, bribed, or manipulated into requesting the move/decision? Any evidence of “behind the scenes” interference by a parent seeking to influence the request for a specific custodial arrangement would make the judge extremely unlikely to agree. Is there evidence that the arrangement will really serve the child’s best interests in the long-term?
So what happens when a child is less than 16 years old? It is important to note that many judges are loath to hear directly from a child, even one who is 16 years old. They reason that putting stress on a child that is associated with “having to make a choice” creates immense and unfair pressure. This may even include having a ‘private’ talk with the judge in his chambers. As a rule of thumb, one should try to understand the judge’s preference or “policy” as to a minor child testifying. Such judges instead prefer to have a best interest attorney (an attorney appointed specifically to represent the child), a private custody evaluator, or an appointed court custody evaluator. Any of these methods will allow the child’s preferences to be heard. These preferences would then be presented to the Court in the form of an opinion or expert report.
When the judge does allow the child to be heard directly about their opinion, the child can: testify (speak) before a judge, with parents present; the child can testify before a judge, without parents present; the child can talk to the judge outside the courtroom, (for example, in the judge’s office). The judge doesn’t have to do what the child asks, as the judge’s obligation is to act in the child’s best interest. The child’s opinion, however, usually does play a significant role.
Whether a child testifies in the open courtroom under oath or in the judge’s chambers is completely within the judge’s discretion. Though it is rare, the Court will hear (as has been my experience) from a child under seven years of age. I once had a judge interview a four-year-old boy in chambers. The child’s maturity, and whether the child can tell the truth from fiction, will guide the decision whether a child may be heard. A child of at least 10 or 12 years of age is generally considered entitled to have their opinions heard under one of the above forms.
For completeness, the factors considered in Maryland for determining the “best interest” of the child include the following:
- Fitness of parents;
- Character and reputation of the parties;
- Requests of each parent and the sincerity of the requests;
- Any agreements between the parties;
- Preference of the child, when child is of sufficient age;
- Willingness of parties to share custody;
- Each party’s ability to maintain the child’s relationship with the other parent, other family members and others who may affect the child’s best interests;
- The age and number of children each parent has in the household;
- Capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare (Note: This is the most important factor in the determination of whether an award of joint legal custody is appropriate.);
- Geographic proximity of the parents’ residences and opportunity for time with each parent;
- Ability of each party to maintain a stable and appropriate home for the child;
- Financial status of the parties;
- Demands of parental employment and opportunities for time with the child;
- Age, health and sex of the child;
- Relationship established between the child and each parent;
- Length of the separation of the parents;
- Whether there was a prior voluntary abandonment or surrender of custody of the child;
- Potential disruption of child’s social and school life;
- Any impact on state or federal assistance resources;
- Benefit to either parent of award of joint physical custody and how that will enable the parent to bestow more benefit upon the child;
- Any other consideration the Court determines is relevant to the best interest of the child.
About Andalman & Flynn, P.C.: Founded in 1998 in downtown Silver Spring, Maryland, Andalman & Flynn has forged a distinguished reputation for legal excellence. The firm represents individuals seeking disability benefits throughout the country and practices family law throughout Maryland and the District of Columbia. The firm focuses on cases that impact the rights of everyone and is there for clients when responsive legal help is most critical. The firm has provided legal analysis on national and local television and radio, and their attorneys often testify before legislative bodies and are routinely invited to contribute to prominent legal publications. For more information about Andalman & Flynn, please visit the website at andalmanflynn.com or call 301.563.6685.