When Does the Well-Reasoned Preference of the Child Apply?
Earlier this month, a New York court ordered that Bethenny Frankel, the former Real Housewife of New York and Founder and CEO of the Skinnygirl brand, is no longer required to pay child support to her ex-husband, Jason Hoppy, because their 11-year-old daughter, Bryn, has chosen to primarily live with their mother despite the parties’ 50/50 custody agreement. Surprisingly, after years of battling over custody of the child in one of the most highly contested celebrity family law matters, Hoppy did not fight the court’s decision to terminate child support or its recognition that Frankel was the primary parent. The resolution occurred all thanks to their 11-year-old daughter’s newly expressed preference.
In Pennsylvania, while the well-reasoned preference of the child is one of the 16 Factors for Awarding Child Custody, parents do not always agree to follow a custody schedule that the child has chosen for themselves. Here are some things to keep in mind when dealing with your child’s preference in a custody matter:
1. There is no minimum age for a judge to consider a child’s preferences.
A child’s custodial preference must be well-reasoned and based on the maturity of judgment to be considered by the court.
2. Reasonableness of the opinion will vary with the child’s age, maturity, intelligence, and the reasons the child articulates for wanting a particular custodial arrangement.
For example, if a 14-year-old child says that she wants to live with her father because he lets her hang out with her friends whenever she wants, the judge would not give as much weight to that preference. However, if the same 14-year-old says that she wants to live with her father because he has lived in the same home and school district for years while the mother has moved frequently, the judge will give stronger weight to the child’s preferences.
3. The judge may interview the child if the judge determines that the child is old enough and mature enough to express a well-reasoned custodial preference.
Upon request by a party or under the direction of the judge, an in-camera (private) interview of the child can be conducted. These interviews take place without the parties present. Attorneys have a right to be present for the interview, however, attorneys can also waive their presence at the interview.
4. The child’s preferences do not control the outcome of the case.
The judge must consider all 16 factors and the totality of the circumstances when deciding a custody schedule that is in the child’s best interest.
5. Parents should make their best efforts to continue to comply with all court orders.
Parents are often faced with the difficult decision of whether they should send their child to the other parent’s house when the child refuses to go. If the other parent does not agree to give up their custodial time, and there is no emergency, parents must use their best efforts to encourage the child to follow the custody order until a court modifies the custody schedule.
If you have questions or need legal advice regarding your custody matter and the applicable factors, it is imperative that you contact an attorney who can provide competent representation and advocate for a custody schedule that is in your child’s best interest.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.