In Utah, the wishes of a child are one factor a court may consider when determining the custody arrangement following a divorce. As the child gets older, the court may give more weight to the child's custodial preference. However, even if the child is over 16 years old, the child's wishes likely will not be the determining factor.
As in all states, courts in Utah are primarily concerned with what is in the best interest of the child when making custody determinations. In this light, courts may consider the wishes of the child, but the court will also consider a number of other factors that indicate what is in the child's best interest. For example, the court will consider the moral fitness of each parent, the physical distance between the parents, the health and emotional needs of the child, the relationship the child has with each parent, evidence of domestic violence, and similar factors.
Weight of Child's Wishes
Although the court may consider the wishes of the child when determining custody, a child's preference will not override every other best interest factor. In other words, even if the child insists that he wants to live with one parent, the judge is not obligated to follow the child's wishes, but instead will consider them along with other factors. If the child is older, the court may place more weight on the wishes of the child, particularly if the child is 16 or older. Even then, it will not be a controlling factor.
In Camera Interviews
Utah law provides that the child's wishes are to be ascertained by an in camera, or private, interview as opposed to taking testimony on the stand. The court may, but is not required to, first obtain permission from the parents. In camera interviews are often used because they may be less stressful or traumatic for the child. The judge will privately meet with the child and ask him questions about his home life and preferences for where he wants to live.
Guardian ad Litem
Another way for the court to ascertain the wishes and best interests of the child is to appoint a guardian ad litem. The guardian serves to represent the child's interests during the custody proceedings. A court is likely to appoint a guardian ad litem in cases where the child is too young to express her wishes in an interview, where the parents are particularly conflicted, or in cases of domestic violence. The guardian will meet with the child to determine her needs, let her know what is going on in the case, and make recommendations to the court based on any and all investigations.
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