In a child custody case, courts attempt to accomplish two goals that may be at tension with each other:
Maintaining the Children's Relationships With Both Parents - The court will attempt to ensure that the children in a custody case have good relationships and maintain strong contact with both parents; and
Respecting the Child's Wishes - When a child is old enough to express an informed preference, a court may allow the child to state which parent the child prefers to serve as primary custodian.
In many custody cases, the parents settle their custody dispute and resolve those issues independently of the court. In other cases, a court may avoid having to directly address the child's preference based upon the parents' decision not to have the child state a preference to the court.
The reasons why a child might prefer to be in the custody of one parent over the other may be entirely valid, may be more indicative of the child's age and stage of development than of which custodial environment is best for the child, or may result from factors that call into question the independence or validity of the child's choice.
It is normal for a child to have a favorite parent. Even when parents attempt to socialize children to love family members equally, that's not a concept that children will easily grasp, nor is it realistic to expect that children are going to consistently view their parents as equals throughout childhood. Children will often have a favorite parent, and that preference may change back and forth over time.
Children may also feel a commonality with a parent based upon their having a similar personality to the parent, being of the same gender, or sharing hobbies and interests. If a parent is frequently absent for work, or has been living outside of the home following the parent's separation, that absence may influence a child to want to live with the absent parent.
A child's preference for one parent over another is usually harmless, and is usually not a significant factor in the family home unless the parents turn it into an issue. Nobody can dispute that, in a divorce, it is painful to hear a child state that they prefer to live with the other parent. Nonetheless,
The favored parent should recall that there's a lot more to parenting than being the favorite, and that the child's preferences can change over time, including in favor of the parent who is not principally responsible for getting them to school in the morning and enforcing bath time, homework and a bedtime routine.
The non-favored parent should also recall that the stated preference may change over time, and that there is much more to providing a good home and being a good parent than being the child's favorite.
Parents should avoid using a child's stated preference to manipulate a custody dispute, and should not express anger or disappointment toward the child. Preferences are normal, and they will change over time, often going back and forth from one parent to the other.
Factors that may call into question a child's stated preference include:
Anger at a Parent - A child may feel anger toward a parent, whether due to a recent argument or discipline, or due to factors related to the divorce and separation, but the child's anger may have little to do with what actually happened.
Alienating Behaviors - A parent may deliberately or inadvertently engage in a pattern of statements or behavior that alienates a child from the other parent;
Lack of Supervision - A child may perceive one parent as considerably more permissive than the other, and be requesting to live in the household with the fewest chores or the least supervision.
Bribery - Whether in an attempt to curry favor, out of guilt for the divorce, or for some other reason, some parents may lavish their children with gifts and fun activities. Children may prefer to live with the "fun parent".
Fear of Rejection - A child may be afraid of being rejected by a parent, even to the point of separately telling both parents that the child prefers to live in their home.
Abuse - A child who is being abused by a parent may feel intimidated into requesting to live with the abusive parent.
Parents should feel free to at times indulge their children, offering treats, spending quality time with their kids, reading books, or simply giving their children positive attention and listening to them talk about their day or their problems. That is parenting behavior that both parents should strive to provide, not a type that should be characterized as an attempt to influence the children's choice.
A parent's anger at the other parent, or disbelief that the other parent was identified by the child as the one with whom the child wants to live, may inspire the feeling that the other parent must have somehow manipulated the child. That's not always the case, and it's important for parents to try to keep a level head when working through a custody case.
When evidence of a child's preference is submitted to the court, whether directly or as the result of a child custody evaluation or guardian ad litem's investigation and report, that expression of preference is not decisive. The court may consider all of the facts of the case, and find that other factors relevant to the child's best interests outweigh the child's preference.
When the parents want the judge to consider a child's preference, some judges will attempt to hear the child's preference in confidence. When that is possible, the judge may express in an eventual decision that the child's preference was taken into consideration, but without informing the parties about which parent was preferred. However, whether or not that type of confidentiality can be offered or maintained will depend upon a state's statutes and case law.
When evidence of preference is submitted to a court, the court should consider why the child is expressing a preference. In some cases, a parent will insist that the child's statement of preference is the result of misconduct by the other parent, or other factors that cast a shadow over the child's statement.
While it's understandable that both parents of a child would prefer to be the favorite parent, that's not possible. If the child's preference is raised in custody proceedings, parents should keep the following in mind:
Love and Favoritism are Not the Same Thing - A child's preference to live with the other parent is not an indication that the child loves one parent more than the other;
The Child Didn't Ask for This - It’s the adults in the child's life who pressed for a statement of the child's preference. Don't do anything to make the child feel bad or guilty about having complied with those demands.
It's Not Personal - In being asked to state a preference, the child is being put in an untenable situation in which one parent is likely to feel disappointed by the child's expression of preference. The preference is a forced choice, not an critique of your parenting skill.
It's Not Your Ex's Fault - In a typical custody case, it's no more your ex's fault that the child expressed a preference for their household, than it would be yours had the child preferred to live with you.
Your children will eventually look back on the custody case and their lives with you and the other parent, and that their perceptions will not only affect their future relationship with you, but will affect their relationships with their future spouses and with their own children. Whatever the outcome of your custody case, it's important to try to work with your ex- as an equal parent, and to keep the children out of the center of the dispute.