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A child’s preference during a custody case

On Behalf of | May 5, 2020 | Firm News

There are many ways to take children’s preferences into account during contesting custody cases. If having a professional or court lead custody evaluation performed, the evaluator will usually speak with the child and may share the substance of those conversations with the parents, their counsel or testify about the child’s preference during court proceedings.

According to DivorceWriter, another way to share a child’s preference is for the court to appoint a special attorney for the child. The job of these unique lawyers involves learning and making a challenge preference part of the court’s record during litigation. Sometimes a child has previously been in therapy, and the parents and the courts are interested in what preferences if any, the child has shared with their therapist.

However, just like anyone else, a child has the same privilege regarding mental health treatment confidentiality that adults enjoy. But in certain circumstances, the court can appoint a special attorney to determine if a child’s therapeutic privilege should be waived to assist in the child custody matter. This attorney is called a child privilege attorney.

According to DivorceMag, if the child privilege attorney determines that a child’s therapist is permitted to testify during litigation, then their testimony may include sharing the child’s preference. If the child privilege attorney determines that privilege should not be waived, then the discussions they have between the therapist and child remain confidential.

It is important to note that judges universally despise having children testify in court proceedings and often hold such decisions to bring children into the courtroom against the party requesting to do so. However, a less commonly used tool to share a child’s preference with the court is to have the judge speak privately with the child inside the judge’s chambers.

The court may consider a child’s preference, but it is not bound by it at all. Custody decisions must be based upon what is in the child’s best interest at the time of trial or agreement.