Child preference in a Child Custody action.

An AVVO question.


In Michigan, what age can child pick what parent they want to live and does a judge listen to a child in a court case

Viewed 9 times. Posted 3 days ago in Family - Dundee, MI

daughter at twelve years old has lived with her dad for five years and would like to live with her mom. is there a certain age at which the daughter can choose who she lives with and how does judge go about this if father lives in colorado and mother lives in michigan. what laws do apply .

ANSWER

The law of the case the case is / was filed in applies. If it is in Michigan here are some thoughts.





BEST INTEREST OF THE CHILD

The Michigan Child Custody Act contains a strong policy statement that “the best interests of the child” must be the court’s controlling guide in custody disputes. MCL 722.25. MCL 722.23 defines the “best interests of the child” as factor (I):





(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.



REASONABLE PREFERENCE



The Child Custody Act lists the “reasonable preference of the child” as one of the factors the court must determine when addressing the best interests of the child. MCL 722.23(i).

IF THE CHILD IS OLD ENOUGH

The court must take the preference into account if it decides that the child is old enough to express a preference. Id.; Flaherty v Smith, 87 Mich App 561, 274 NW2d 72 (1978).

The child’s preference does not have to be accompanied by detailed thought or critical analysis. Pierron v Pierron, No 138824, 2010 Mich LEXIS 884 (May 11, 2010) (trial court could not disregard the children’s preference for attending Howell schools because court concluded that children, having never attended Howell school, presumably lacked any factual basis on which to form reasonable preference). Before the trial court may disregard a child’s preference, it must find that the preference was arbitrary or inherently indefensible. Id.



THE COURT MAY QUESTION IN THE JUDGES OFFICE



The trial court may determine the child’s preference by questioning the child in camera rather than by taking the child’s testimony in court. Impullitti v Impullitti, 163 Mich App 507, 415 NW2d 261 (1987). The court of appeals in Burghdoff v Burghdoff, 66 Mich App 608, 239 NW2d 679 (1976), approved a trial judge’s in camera conference with an eight-year-old boy at which the child stated that he preferred to live with his father.

MANY DO NOT WANT CHILDREN TO TESTIFY IN OPEN COURT

The court held that, as a general rule, such a conference was the best way for a circuit judge to determine the child’s preference while sparing the child from having to testify in favor of one parent in open court under cross-examination. The trial judge had not erred by failing to ascertain on the record that the child had the intelligence and sense of obligation to tell the truth because such a determination, required by MCL 600.2163, applies to testimony about disputed facts but not to a child’s statement of preference. (MCL 600.2163 was repealed by 1998 PA 323, effective August 3, 1998.)



THE JUDGE CAN ASK THE CHILD THEIR PREFERENCE







Based on an amendment to MCR 3.210(C)(5), such in camera interviews are limited to a child’s custodial preference.

Although Molloy firmly established that the subject matter of an in camera interview is strictly limited to determining the child’s preference, neither caselaw nor court rule precludes a trial court from taking testimony in court regarding issues other than the child’s preference. In Surman v Surman, 277 Mich App 287, 745 NW2d 802 (2007), the trial court properly allowed the parties’ child to testify in open court regarding alleged physical abuse by his father. “[A] trial court must take testimony in open court on issues of abuse or mistreatment because to allow courts to discuss such matters during the in camera interview would constitute a due process violation.” Id. at 302.