The Court may take into consideration the preference of a minor child when it comes to which parent gets physical custody in a divorce proceeding.

Young Sarah was distressed that her parents were getting a divorce, and she did everything she could to try to bring them back together, including being on her best behavior with cleaning her room and doing chores. But when it was clear the divorce would happen, she was faced with the most unpleasant task of all -- deciding which parent she would live with.

Her parents were as conflicted as 12-year-old Sarah regarding the child’s permanent residence. Her father, Martin, thought she should live with him because he provided an even temperament and steady hand when it came to school and sports. Her mother, Molly, thought Sarah should live with her because she needed emotional support and nurturing, particularly during this stressful period in her life.

Attorneys for both parents advised that Michigan custody law considers two types of custody for children: legal and physical. Legal custody pertains to the rights of parents to make important life decisions for the children until the age of majority, while physical custody refers to the rights of parents as to where the children live. (For more on the distinction between legal and physical custody, please refer to this link: custody.)

When parents agree on custody, the Court usually abides by their decision unless it appears that the parents’ agreement somehow isn’t in the best interests of the child. When physical custody is contested as it was in the case of Sarah, the Court considers 10 factors known as the Best Interests of the Child Factors.

Those factors include the emotional ties between the parents and the child, the capacity of the parents to continue the education and raising of the child in his or her religion or creed, the capacity to provide food, clothing, and medical care, and moral fitness of the parents.

The Court also is allowed to use the “reasonable preference of the child” as a factor, if the judge decides the child is old enough and mature enough to express a preference. Some judges have allowed children as young as 6 to express a preference, while other judges have not considered the preference of older children who they consider too immature.

For the well being of the children, judges usually conduct meetings in chambers or private offices with a clerk or secretary present, but not the parents. Attorneys for the parents advise their clients not to “coach” the children or try to influence what they may say. A parent who has obviously tried to coax or coerce a child will face losing custody.

Both Molly and Martin played by the rules and both parents measured up well when the factors were evaluated. In the private meeting with the judge, Sarah said she loved both her parents, but gave a slight edge to her mother for physical custody, which was awarded to Molly. Martin abided by the ruling and made it a point to be present at Sarah’s sports events and help her with school work when asked.

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