As a matrimonial lawyer, I often get the question "how old does a child have to be to decide who they get to live with?"  There is a perception out there that there is a magic age where a child is empowered to decide which parent they get to live with.  This simply is not the case. 

Rather, a child’s preference is only one factor a court must consider when deciding custody.  Why is the child’s preference not absolutely determinative?  Because it is not always reliable and may not be in their best interests.  Maybe the child is too young or too immature for their preference to be relied upon alone.  Maybe one parent is improperly influencing or pressuring a child to express a preference that is not their true preference.  Maybe the child feels bad for and/or feels the need to take care of the parent because of some physical or mental infirmity of the parent or a feeling that the parent is the victim of the other parent.  Perhaps the child has been promised something by the other parent or is trying to play one parent against the other.  Perhaps the child (maybe a teen) feels that the other parent will give them more freedom. 

This issue becomes even more difficult after an initial custody determination is made or agreed to and then a child expresses a preference to live with the other parent.  That was the issue in the unreported (non-precedential) decision in the case of Traynor n/k/a Dallara v. Traynor decided on March 29, 2011.  In this case, the father appealed the denial of his motion to change the custody of his 11 year old daughter who allegedly decided that she wanted to live with him.

This was a hotly litigated case involving 12 post-judgment motions.  In fact, this was the third time that the father sought to change custody.  Interestingly, the court noted that:

When the child was approximately eight years old, she was given the mistaken impression, by one or both of her parents, that she had the right to choose the home where she preferred to live. As Judge Haas found, however, there are indications defendant may be unwittingly pressuring the child to live with him. An example of this conduct was his gift to the child of a backpack bearing the logo of the grade school in his

On appeal, the father claimed that it was error for the court to refuse to interview the daughter.  That said, the Appellate Division pointed out that interviewing a child in a custody matter, while previously was a mandatory step, is no longer mandatory and subject to the discretion of the trial judge.  Of note, when addressing the rule change, the Appellate Division concluded that, "The reasons for the amendment seem obvious: a child’s stated preference should not be controlling, … and, furthermore, such interviews can be quite emotionally damaging to a child."  This is a pretty insightful and powerful statement.  In fact, the case quoted by the Court addresses how judges may not really be equipped to interview children.  In this case, the trial judge had no doubt that the child would say that she wanted to live with the father, negating the need to hear her point of view.  In fact, the trial judge stated:

Defendant continues to point to what he describes as [the child’s] "consistently
expressed desire" to have him become the PPR. But, it is clear to the Court from the
parties’ certifications that defendant continues to engage the child in these
discussions, to the point of giving her presents emblazoned with his local school’s
logo. [The child] is 11 years old. Obviously, at that young age, she responds
to parental cues. While the Court cannot make a clear finding that defendant is
attempting to pressure the child to live with him, it is very clear that he is
continuing a campaign that began years ago when he, and plaintiff, first thought it
would be a good idea to have the child decide where she should live. The October
2008 order found that, because of the parents’ actions, [the child] was going to
need counseling regardless of where she resided. Because [the child] was doing well
under the current arrangement, that arrangement was kept in place. And, this
arrangement will remain in place until there has been a significant change of
circumstances that requires a modification in order to serve [the child’s] best
interests. That is not the case here. What this family needs is counseling. They do
not need constant litigation.

Of great significance, the Appellate Division cited with approval the trial court’s finding that, "… a child’s preference, even if clear and ‘persistent’ is not a change of circumstances warranting a modification."

As a secondary issue, the father argued that the trial judge erred by not getting an updated report from the parent coordinator regarding the issue of change of custody.  This argument, however, clearly was improper because it was requesting that the parent coordinator serve an improper function.  Parent coordinators are not permitted to recommend custodial changes.  Rather, the court noted:

the coordinator’s task was merely one of assisting the parties in arranging counseling for themselves and their daughter, and to help the parties work through any disputes about scheduling actual parenting time. Given the parent coordinator’s (sic)  limited function, no
updated report was necessary and the denial of this request was therefore also reasonable.

A few things can be taken from this case:

  1. Children’s preferences are not absolute
  2. Children’s preferences are do not represent a change of circumstances
  3. Child interviews are not mandatory, especially where what the child would say is really not in dispute
  4. parent coordinators cannot opine on custody changes
  5. Perhaps most importantly, parental pressure on a child about where to live is rarely a good them and can create more far reaching problems.