It is fairly common for clients to want to build a custody proceeding around the fact that a son or daughter has enunciated a preference toward one parent or the other. A fairly common question posed to attorneys is: How old does my child have to be before he or she decides with whom to live? The answer does not involve any bright line test. It is for the judge deciding the matter to determine what weight to give to a child’s preference. Moreover, the preference has to reflect considered thought on the part of the child and all other surrounding circumstances to have real weight. A fifteen year old child may love to live with the parent who permits him to do homework when he wants and go to bed when it suits him. That is the child’s preference but not in his best interests.

So how old does Junior have to be? The fact is that even small children (ages 7-10) can communicate “problems” they perceive in a custodial arrangement. They can describe their diet, their environment and can sometimes describe frailties in a parent. In terms of helping a court to make a choice or articulate the merits of life with one parent versus another, you are wasting your time and money unless you have one of those children who will go to college at fourteen years of age. Children who are eleven and twelve usually can help a judge to assess relative merits but they are often very reluctant to impart those closely guarded views and they are acutely sensitive to the fact that words of preference are going to “leak”. Often they will tell you that they prefer life with you while telling the other parent that they prefer life with that parent. They also have a strong penchant for what is “fair” and “fair” often means equally shared custody. Many parents take a case to trial based on hearing what they want to hear from their youngster.

What happens when a child is called to court to testify. Except in rare circumstances, judges will interview these children outside their parents’ presence. It is in the Court’s discretion to decide whether parents may witness the testimony. But, it is equally clear based upon the rules of court and a recent Superior Court ruling in Ottolini v. Barrett, 954 A.2d 610 (Pa. Super. 2008) that the attorneys for the parents have a right to be present when the child is interviewed and to question the children. Many judges openly discourage this. The rules also require that any interview of a child be transcribed by a court reporter and made part of the record. Judges also are wary of doing this because it means the parents will be able to read the interview in transcribed form and, inevitably tell the child how disappointed that parent is in what the child said.

In an effort to avoid this embarrassment it is not uncommon for counsel to stipulate to permit the child to speak with the judge alone and to do so without a court reporter. This takes the pressure off the child but does leave the parents and counsel to wonder what was really said. As the client, this is your choice to make and one that should be fully explored before the interview takes place. The logistics for the child need also be addressed. Nothing angers judges more than to see children of any age waiting in courthouse hallways surrounded by warring parents and family members while waiting for their moment with the judge. The better route is to have counsel schedule a specific time for the child interview and arrange for the child to be in school or camp until the appointed hour for the interview. Once over, judges want to see the child sent back to someplace like school or camp where the pressure is off.