“Do I Get a Say?” – The Role of Children’s Preferences in Michigan Custody Decisions

Kids don’t have much of a say about whether or not their parents get divorced, even though the process will alter and upend their lives for years to come. But every child certainly has feelings about the situation. Those feelings may include confusion, sadness, anger, or fear. Most children also have opinions about what will happen to them after the divorce, such as where they will live, who they will live with, and how much time they’ll get to spend with each of their parents.

But how will those opinions and preferences be considered by a Michigan family law judge who makes decisions about child custody?

Child’s Preference May Be Considered When Evaluating Their Best Interests

As in most states, Michigan courts make child custody determinations based on what is in the best interests of the child. Judges will consider the following 12 statutory factors when determining arrangements that would be in the child’s best interests:

• The love, affection, and other emotional ties existing between the parents and the child.
• The parents’ ability to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
• The parents’ ability to provide the child with food, clothing, medical care, and other material needs.
• The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
• The permanence, as a family unit, of the existing or proposed custodial home or homes.
• The parents’ moral fitness.
• The parents’ mental and physical health.
• The child’s home, school, and community record.
• The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
• The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
• Domestic violence.
• Any other factor the court considers relevant.

Michigan judges have broad discretion in determining which factors they will consider and how much weight they will give to each factor relative to others. This includes how much and whether a child’s expressed preferences will be thrown into the mix.

Maturity and Ability to Make Rational Decisions Is Key

As noted, a child’s preference may be considered “if the court considers the child to be of sufficient age to express preference.” As any parent knows, every child is unique. Two children who are the same chronological age may have wildly dissimilar levels of maturity, thoughtfulness, and rationality. That is why Michigan law does not set a specific age for when a judge may consider a child’s preference.

A child may be mature enough to express thoughtful opinions about their own future, but that does not mean they are unsusceptible to improper influence. Parents may try to engage in all sorts of dubious conduct to make a child favor them over the other parent, like bestowing gifts, promises of lax discipline, and badmouthing their spouse to turn the child against them. That is why the judge will want to do some digging to ensure that the child’s preferences are genuinely their own.

The judge may request to hear from the child directly in chambers, without their parents. Alternatively, the judge may appoint a Friend of the Court representative, typically an attorney or trained social worker, to meet with the child and each parent to discuss matters before preparing a report for the judge with their conclusions and recommendations.

Even if a judge is satisfied that a child formed their expressed preferences without improper influence and they are the product of reasonable consideration, that judge can still completely disregard those opinions if other factors lead them to conclude that granting custody to the child’s preferred parent would be against their best interests.

Call Kreis Enderle With Your Child Custody Questions and Concerns

The attorneys in Kreis Enderle’s Family Law Practice Group understand how difficult and taxing child custody matters can be for parents and children alike. If you have questions or concerns regarding child custody or any other divorce and family law issues, we are here to provide you with answers and a path forward. Please contact us today.