Does The Court Take Into Consideration A Child’s Preferences In A Custody Dispute?

If you’re involved in a custody dispute, you might wonder how much your child’s preferences matter. Is your child allowed to tell the judge which parent he or she wants to live with? The answer is it depends.

The judge in a custody case will almost always take into consideration a child’s preferences regarding living arrangements and the physical custody schedule.

How much weight the judge places on the child’s preferences, however, will depend on the age and maturity of the child.

Child Custody in Pennsylvania is determined based on a variety of factors. The custody laws in Pennsylvania list 16 factors that courts are supposed to consider when making a custody determination. None of those custody factors are controlling by themselves. Judges look at all factors and try to reach a decision that is in the best interests of the children.

One of the custody factors in Pennsylvania is “the well-reasoned preference of the child, based on the child’s maturity and judgment.” However, there is no set age when child’s preference becomes applicable to a custody case. Although, obviously, greater weight is placed on the preference of older children. This is because the older a child gets, the more intelligent and informed their views and opinions become and the easier it is for them to articulate their feelings.

If a judge thinks a child is old enough to make a mature opinion, he or she will either rely on a custody evaluation discussing the preferences and/or interview the child. 

A judge will consider a custody evaluation done in your case by a psychologist or other professional that discusses your child’s preferences. The judge will almost certainly take this into consideration instead of interviewing the child directly. If no such report exists, or if there is a dispute over the report, the judge will typically interview the child at the request of one of the parties. The interview is usually informal and takes place in the judge’s chambers. This process is less stressful for the child than being examined in open court. 

Although courts try to consider a child’s preferences whenever possible, it’s not feasible in all situations.

It’s not a good idea to question a young child about his or her preferences. Young children may not understand the process or may feel obligated to just make an arbitrary choice of one parent over the other. This could result in a custody situation that is not truly in the best interest of the child.

You also should be careful about having a child talk to a judge or testify in court. Children usually do not say what you expect them to say. They want to stay neutral and will almost always tell the judge that they want the custody schedule to be equal (even if that is not what they actually want), because they don’t want to hurt their parent’s feelings. Judges also do not like it when parents ask their children to testify in court and will often hold it against the parent that does.

If you are experiencing a custody issue, get in contact with us. The experienced and knowledgeable attorneys at Cooley & Handy can help you navigate this delicate area of family law.


Where Do You Modify An Alimony Order When Neither Party Lives In The State That Entered The Order?

A client recently asked us for assistance modifying his New Jersey alimony order. He and his spouse divorced in New Jersey and the court issued an alimony order. Post-separation, both parties moved to Pennsylvania. A change in circumstances prompted the client to seek modification of the existing order. Unfortunately, the law mandates that the parties must return to the New Jersey Court that issued the original order.

Just when you thought you were out, they keep pulling you back in!

Many individuals going through divorce move out state in hopes of getting a fresh start; however, modification of an existing alimony order can be a rude awakening.

Pursuant to the Uniform Interstate Family Support Act (“UIFSA”) exclusive jurisdiction over alimony orders remains with the state court that entered the order.

The UIFSA is recognized in all 50 states. It states in part:  “A tribunal of this State issuing a support order consistent with the law of this State has continuing, exclusive jurisdiction over a spousal support order throughout the existence of the support obligation. A tribunal of this State may not modify a spousal support order issued by a tribunal of another state having continuing, exclusive jurisdiction over that order under the law of that State.”  23 Pa.C.S.A. § 7205(f).

Therefore, if you wish to modify your existing alimony order, you must do so in the state court that issued the original order, even if you no longer live in that state.

Although the UIFSA was designed to promote efficiency in the court system and assist in resolving jurisdictional disputes, it may result in a huge inconvenience to you. Due to this law, our office had to refer the above-mentioned client to a New Jersey attorney.

While Bucks County courts have recognized the burden this law may place upon parties in a divorce action, they have held firm in following the terms of the UIFSA. In Hibbitts v. Hibbitts, a case just like the one our office encountered, the Bucks County Court refused to modify an alimony order that was initially issued by Monmouth County Superior Court of New Jersey after Husband moved to Pennsylvania and Wife moved to Vermont.

This jurisdictional rule, however, does not apply to child support orders or child custody orders.

The UIFSA assigns different rules to the enforcement of child support orders, including the option for other state courts to modify orders. Additionally, enforcement and modification of child custody orders is regulated by an entirely separate law, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

Keep in mind that modification of an existing alimony order will force you to return to the state court that issued the order, no matter how inconvenient. It’s best to be prepared and plan accordingly. If you have a jurisdictional issue involving alimony, child support or child custody, you should get in contact with us. The attorneys at Cooley & Handy can help you navigate this complex area of family law.