Vocalizing a child’s custodial preference to the court
Posted on 02/24/2017 at 12:00 AM by Regan Wilson
Typically, parents of older children who are caught in the web of an ugly custody battle often wonder “Why are the courts not listening to my child’s desire to live with me?” In Iowa, the court actually will listen to the child’s preferences, but it is only one factor out of many that the court will take into consideration in determining which parent will serve the child’s best interests. It follows that the parent wishing for the child’s preference to be vocalized is often faced with the difficult decision as to whether putting the child in that position is worthwhile when the child’s preference is ultimately not controlling upon the court’s decision.
Under Iowa law, the court will take the child’s preference into consideration depending upon the following factors: 1) the child’s age and educational level; 2) the strength of the child’s preference; 3) the child’s relationship with family members; and 4) the reason the child gives for his or her decision. Practically speaking, the judge often does not hear directly from the child unless the case proceeds to trial. If the case does proceed to trial, the court must then determine whether they are going to put the child on the stand to testify or whether the court will listen to the child in the judge’s chambers. Often, to reduce the discomfort of the child testifying in front of his or her parents, the court will talk to the child privately in chambers.
Although it is an option to have the child testify or speak to the court directly, often parents want to avoid this route to protect the child. Fortunately, the family law court system offers a couple alternatives. One option is to hire a Guardian Ad Litem (“GAL”). A GAL’s role is to interview the parties, the children and any collateral witnesses, and to conduct an independent investigation. The GAL then participates in all court proceedings, including trial, and may question witnesses and parties. The GAL’s position is not to vocalize the child’s preferences to the court, but to serve as an independent representation of the child’s best interests. The other option is to hire a child custody evaluator who may conduct clinical interviews of each parent, interview the children, assess the home conditions, interview any other people who have significant contact with the parents and children, and assess the parent’s parenting capabilities. The child custody evaluator will then issue a report to the court with his or her findings. Although the court does not have to follow the lead of either the GAL or the custody evaluator’s report, the court may find these independent sources persuasive especially when each parent is a suitable custodian. The drawback to using either is that both can be expensive. If you are looking for a way for your child’s preferences to be vocalized by the court, explore your options, because how you approach this difficult decision differs for each family with their own unique set of circumstances. For more information, feel free to contact Regan Wilson.
The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.
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