The most common question posed to a family law attorney when discussing custody matters is at what age can my child pick with whom and where he would like to live? Most clients believe the “magic age” is fourteen, as the health care system has permitted children to make medical privacy decisions at this age, but this is not so with custody actions. The easiest answer to the question is that a child can make the decision of where he wants to reside when he reaches the age of eighteen, as that is the age of majority. Even with the 2011 changes to the Pennsylvania custody code, no changes were made to the issue of whether a child has the right to determine with which parent he wants to reside. In fact, the general consensus in the legal field is that judges should never ask a child this question, as by doing so it places an unnecessary burden on the child.
Judges will, however, speak with children in custody actions, through an in camera interview. This means the conversation happens in private, usually in the judge’s office, not in an open courtroom. There is also a limited number of people participating, namely attorneys for both mom and dad, and the court reporter, but sometimes, no one at all. Parents are rarely permitted to be present or listen to their children’s responses. The content of the conversation will include such questions as what sports the child likes, what is his favorite subject in school, does he have any pets, etc. After these introductory questions, the judge will delve into more specific areas, such as, who takes the child to the doctor, who stays home when he is sick, who takes him to sporting events, who assists with homework, what the home life is like in both households, etc., but will never include the question of with which parent would the child like to live. These questions help the judge determine which parent is providing the primary care for the child.
Even if a child states a preference for one parent, by statute, it is only one of sixteen factors a judge must consider and it must be “well-reasoned.” In most cases, judges are more concerned about the practicality of work schedules versus school schedules and the parties’ living conditions, over a child’s preference, but if both parents are fit and capable of caring for the child, the child’s preference could ultimately tip the judge’s decision in favor of one over the other.
Cara A. Boyanowski concentrates her practice in the field of domestic law and wills and estates. As a domestic law practitioner, she represents clients in simple and complex divorce, support, custody, alimony, step-parent adoptions, name change and same-sex divorce and custody matters. She works out of Obermayer’s Harrisburg, PA office and can be reached at 717-234-5315 or at Cara.Boyanowski@obermayer.com.