It is not uncommon for a prospective client(parent) to say that the court should award him/her primary custody of their child(ren) because the minor child(ren) told that parent that he or she want to live with that particular parent. However, the child’s preference may or may not matter in child custody determinations because the judge presiding over a child custody determination, whether during an initial divorce case or in a subsequent child custody modification, must consider and act in favor of what is in the best interest of the child.
Florida Statute 61.13(3) outlines the many factors the judge considers when making initial child custody determinations as well as modifications to original child custody determinations to determine exactly what is in the best interest of the child. Specific to this blog is 61.13(3)(i) which allow the judge to consider “the reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.”
Based on the plain language of the statute referenced in the paragraph above, the court must first find that the child is intelligent enough and has the adequate understanding to take the child’s preference under consideration in the first place. For example, a judge is more likely to hear the preference of the minor child if the minor child is fourteen years old compared to the preference of a child who is only seven years old.
From a practical consideration, the attorneys should also be concerned about involving any minor in the actual litigation by asking the child to testify in child custody determinations. In fact, there are other alternatives outside of hearing the child testify, to notify the judge of the child’s preference and these alternatives will be discussed in a later blog.
However, even if the child exhibits sufficient intelligence, understanding, and experience, as to where his preference is made known to the court, the child’s preference alone is not enough to satisfy the best interest of the child standard in making a child custody determination. Moreover, a change in preference by the child, will not qualify as a substantial and material change in circumstances necessary to modify child custody either.
In conclusion, while the preference of the child is helpful for a parent involved in litigation involving child custody, the bottom line is that this factor alone will not be held to be in the best interest of the child and the party seeking child custody must be diligent in proving to the judge that there or other factors pursuant to Florida Statute 61.13(3) which serve as the reason why that parent should be awarded primary custody (or majority time-sharing) over the minor child(ren)