How a Court Considers Children’s Preferences When Determining a Parenting Plan

The best interest of the child is the standard by which all orders and judgments impacting a child are held to. Particularly in terms of living arrangements, what a child may want or think is best for themselves does not always align with what their parents or what ultimately, the court, believes is in their best interest. While the child’s opinion will be considered, its weight varies depending on the specific facts of the case.

The younger the child, the less weight their opinion appears to be given when it comes to their living arrangements. When the child is the age of ten or younger, the child’s preference is not a decisive factor but still one the court shall consider. For example, “[i]n situations involving younger children who are not yet sufficiently mature to comprehend where their welfare lies, the courts are empowered, indeed obligated, to substitute their judgment for that of the child.” Custody of A Minor, 383 Mass. 595, 602, (1981). The child’s interests must be considered in conjunction with the parents’ rights and the state’s interests, too.

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As a child gets older, they may be given slightly more deference, however, preferences of a child or a teenager should be treated cautiously “…as it is natural for a child to wish to remain with their friends at school.” Hale v. Hale, 12 Mass. App. Ct. 812, 820 (1981)(where the children were ages nine and thirteen). However, it has long been established law in Massachusetts that the preferences of children of sufficient maturity may be considered. Custody of A Minor, 383 at 602. There is no particular age set forth as a standard for when a child’s preferences begin carrying more weight. However, where the minor child is a teenager and close to turning the age of eighteen, greater weight is attached to the child’s preferences as there is a greater presumption of sufficient maturity. Id. at 595 (where the child was intelligent but experienced a psychological rift with his mother where a reunification may have resulted in harm to one or both of them). Ultimately, the court has a duty to act in the best interest of your child, regardless of your child’s preferences.

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An attorney representing the child (ARC) or a guardian ad litem (GAL) may be assigned in some cases. An ARC represents the minor child’s wishes, even when not necessarily in their best interests, whereas a GAL is tasked with recommending what is in the minor child’s best interest. Both methods are implemented to bring the child’s voice into the proceedings.

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ARCs are court-appointed attorneys, volunteering their services to represent a child. The role of an ARC is to represent the child’s wishes by meeting with the child and reporting back to the court on what it is the child desires, acting as the voice of the child. In instances where the child is young or has difficulty communicating their wants, if given permission by the court, the ARC may submit their own substituted judgment by explaining to their best discernment, what the child wants.

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Unlike an ARC, who represents the child, GALs are not advocates. GALs are neutral, third parties.? GALs are trained specialists who serve in an investigative capacity and produce written reports to the Probate & Family Court for cases concerning the care and custody of minor children. Their reports provide information regarding the child, their family, and their home life environment. GALs are most often court-appointed but may be elected by the parties. Their purpose is to promote uniform, consistent, and accountable investigations, to improve outcomes for children, and promote respect for the parties and children.?

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Ryder & Phelps, P.C. has significant experience handling child custody matters where GALs and ARCs have been appointed. Additionally, both Attorney Ryder and Attorney Phelps have been appointed by numerous judges as guardian ad litem. This insight allows our office to provide clients with meaningful knowledge and an analysis of the potential outcomes of their parenting plan based on the facts of their case. To read more about the role of ARCs and GALs, visit our prior blog post.

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