CAN THE COURT GRANT THE WISHES OF A CHILD IN CHILD CUSTODY CASES?
They say custody cases are usually messy and this is not far from the truth. This is because each party (the parents) typically believe they can parent better and would want to prove at all costs that they have the child’s interest at heart and that they are the best person for the job. At this point, emotions are usually intense and figuring out child custody after a separation or divorce is the duty of the court to handle. You can check out our article on THINGS YOU SHOULD KNOW BEFORE PURSUING A CHILD CUSTODY REQUEST. for more insight.
Having the legal custody of a child includes having the right and the obligation to make decisions about a child's upbringing. A parent with legal custody can make decisions about the child's schooling, religious upbringing, medical care. etc.
It is the duty of the court to decide the kind of custody to award; whether it is going to be joint custody, shared custody, temporary custody, or third party custody. There are factors the court will consider when determining this.
While we advise that parties find a common ground and settle out of court, there may be situations where they eventually have to submit to the court for redress. The most important thing the court takes into consideration at that point is the best interest of the child.
What constitutes the best interest of the child is not a magic wand neither is it a straight jacket rule. In the determination of the interest of the child in making a custody order, the court will take into consideration the ages of the children; the arrangements made for their accommodation, education, welfare and general upbringing, as well as the conduct of the claimants.
But awarding a child's custody, does the court take into consideration a child's wishes also? For instance, where the child desires to stay with the father, will the court grant such wish? This depends.
In order for the court to give a child's wishes or input any weight in making the decision, the child must meet certain requirements. For instance, the child must usually be sufficiently mature to be able to formulate and express a reliable opinion and request as to his/her custody. In some places, there may be a set age that the child must be in order for the courts to consider their wishes.
Although the child's opinion/desire will not necessarily be the main controlling factor, it may be considered by the court in determining custody in some circumstances. In most cases, if the child meets the requirements and has valid reasons for their requests, then the court will take these into consideration amongst the other custody factors.
Must the court follow the child's request?
Some States have specific laws and statutes regarding the child's wishes in determining custody rights. Some States have adopted laws that state that when a child reaches a particular age, the child must be allowed to choose their custodian. If the jurisdiction has not yet established such a statute, then the court may be able to use the child's request at its discretion. This will usually then be on a case by case basis, as each case will be different.
Why would the court not grant the wishes of a child?
The courts have to make decisions based on the interest of the child so that they can ensure a safe and secure environment. A child's wishes may be disregarded by a court if the parent or person chosen to take custody is unfit to be a guardian due to:
Risk of harm or abuse
Other similar concerns
It is worthy to note that the court usually treats the wishes of the child with caution as this may be coloured either by his age or a parent’s influence.