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Does the Child Have Input into Custody Decisions?

When a couple files for divorce and children are involved, child custody issues arise.  It’s not uncommon for clients to ask, “Does the child have input into custody decisions?”  Basically, do their child’s wishes relating custody play into the judge’s determination?  There’s also a common misconception surrounding this question.

Judges normally make decisions based on the current laws and where discretion is allowed, they attempt to make decisions based on the best interest of the child or children.  In deciding which parent should have physical custody, there are a number of factors to be considered.

Initially, one of the parents may concede that it would be better to have the child live with the other parent.  Visitation and other co-parenting issues could then be determined and agreed upon.

However, there are times when both parents are open to physical custody.  It’s possible that one parent believes the child has a strong preference.  However, in Kentucky, the law doesn’t actually consider the child’s direct input.  So, does the child have input in custody decisions?  No.  If one side attempts to prove that the child wants to live with them, it can be dealt with as hearsay.

It’s fairly difficult to win a motion based on the child’s preference (either real or assumed).  There seems to be an urban legend (e.g. misconception) that once the child becomes a teenager, the court will listen to his/her opinion.  This simply isn’t true.

The more successful way to get a child’s preference entered into the record may be to have a therapist document why it would be more beneficial for the child to live with a specific parent.  The therapist may ask the child directly.  Based on the child’s response, the therapist would then have to substantiate how and why this would be beneficial to the child.  Some are hesitant to go to far in this area.  However, expert testimony is often relied upon by the judge, especially when confronted with complicated matters.

As I’ve written in previous posts, there is always the option of mediating this decision to avoid having it left up to the judge.  There’s also the possibility of filing a post-decree modification to change the primary custody, should circumstances merit a reconsideration.