Do underage children have any say in custody in the U.S.?
In my jurisdiction where I practice family law (Utah), the answer may be hard to discern by reading the Utah Code, but here it is (I’ll explain it after you read it):
. Custody of children in case of separation or divorce — Custody consideration.
(1)(d) A child may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the child be heard and there is no other reasonable method to present the child’s testimony.
(1)(e) The court may inquire of a child and take into consideration the child’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child’s custody or parent-time otherwise. The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.
(1)(f) If an interview with a child is conducted by the court pursuant to Subsection (1)(e), the interview shall be conducted by the judge in camera. The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with a child is the only method to ascertain the child’s desires regarding custody.
So what does this mean? Does it mean that children get to choose with which parent they will reside after divorce? Does it mean that children get to tell the judge what their preferences are and why?
No and no.
When the Utah Code states that “[a] child may not be required by either party to testify unless [the court] determines that extenuating circumstances exist that would necessitate the testimony of the child be heard and there is no other reasonable method to present the child’s testimony,” translated that means “a child will almost never ever testify because court will never determine that sufficient extenuating circumstances exist to necessitate the testimony of the child being heard; instead, the court will determine there are other ‘reasonable’ methods to present the child’s testimony, like a custody evaluator or guardian ad litem, both of which are prohibitively expensive, second-hand sources, and not terribly reliable.”
When the Utah Code states that “[t]he court may inquire of a child and take into consideration the child’s desires regarding future custody or parent-time schedules,” “may inquire” means “never inquire.”
“The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor” means “the court can, and almost always will, do whatever it wants, irrespective of what a child may desire.”
Don’t believe me? Ask around. See if you can find a lawyer who was able to persuade a court to allow children to express their desires regarding custody and visitation directly to the judge.
So why are judges so reluctant to listen to children?
They’ll tell you that they don’t consider children terribly credible witnesses on the subject of custody because a) they are believed to be too easily manipulated and coached by one or both parents; and b) they are not “qualified” to conduct a valid interview of a young child. It’s all nonsense, but the excuses don’t have to be good, they just need to exist to provide the court with an out.
How will a judge know a child is too easily manipulated or coached unless the judge interviews the child? You can’t disqualify a witness on mere beliefs and stereotypes. And if a judge begs off of interview a child by claiming he/she is not “qualified” to conduct the interview, then the judge isn’t qualified to be a judge. And if lack of qualifications is the excuse, the solution isn’t refusing to interview the child, it’s getting qualified.
Utah Family Law, LC | divorceutah.com | 801-466-9277