It's hard enough for adults to accept that a divorce court can decide when and how they see their children. Telling a child that he must live where a judge says he must -- and that he has no choice in the matter -- can be doubly difficult. Several states take a child's preference into consideration when determining custody to try to avert this problem -- and Maryland is one of them. In fact, the state is one of the more progressive when it comes to accommodating the feelings of children involved in a divorce.
Your Child's Preference
Like all other states, Maryland has a statutory list of factors that a judge must consider when deciding custody -- issues that are considered to be in your child's best interests. Maryland courts have long taken the position that your child's opinion matters, and his preference is included as one of the state's best interests factors. The statutes don't cite a specific age at which your child is old enough to have his wishes heard, however. Maryland judges have considered the preferences of children as young as age 10, 11 and 12, but children ages 7 and 8 are sometimes deemed too young.
Maryland's reluctance to set a statutory age by which children should be heard allows judges a lot of leeway. It also puts additional pressure on them to play the role of psychologist. Judges must determine whether a child is simply parroting something he's been told to say – particularly if he's young – or if his feelings are genuine. For example, in the case of Wallis v. Wallis, the court decided that the parent seeking custody coached the children and as such, the judge did not consider their wishes. A judge can, and usually will, interview your child without you present. He'll gauge your child's maturity and weigh his reasoning, such as if he just wants to be with you because you're the more lenient parent.
Although Maryland gives some weight to your child's feelings, his preference doesn't exist in a void. The state's other best interest factors come into play as well, and a judge must consider them. Your child's wishes are only one component of the final custody decision. Courts must also consider issues such as which parent was typically the child's caregiver when the marriage was intact and which parent is most likely to promote a continued relationship for the child with the parent who is not granted custody. The judge will also weigh your physical and psychological abilities to care for your child.
Maryland is somewhat unique in that it allows your child to take matters into his own hands when he's old enough. Teenagers age 16 or older can petition the court themselves to ask for a change of custody if they're unhappy with the arrangement ordered in your decree. If your child does this, however, it doesn't mean the court can't or won't take the state's other best interests factors into consideration. Your child has the burden of proof to establish that such a change supports his emotional and physical well-being.
- The People's Law Library of Maryland: Custody
- Maryland Law Review: Best Interests of the Child – Maryland Child Custody Disputes (PDF)
- Keith Blair Bartnik: Child Preference in a Custody Issue in Divorce in Maryland
- Children's Rights Council: Maryland Law – Requirements and Interpretations for the State of Maryland
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