How the Pennsylvania Court Weighs Child Preference in Divorce Cases

By Sheryl Rentz on November 9, 2021

Legal and Physical Custody in Pennsylvania

There are two types of custody, physical and legal. Physical custody relates to where the child will be living, and legal custody refers to the right to make major decisions about the child’s life. Parents may decide to share legal and/or physical custody, but it is ultimately up to the court to determine whether to grant joint, sole, or partial custody to one or both parents after a divorce.

Does the Child’s Preference Make a Difference?

According to Wheeler v Mazur, a child’s preference should be given weight when determining custody; however, it is ultimately up to the judge to decide how much weight to place on the child’s desire to spend time or not to spend time with a parent when granting custody.

Decisions regarding physical and legal custody are largely based largely on the parents’ circumstances. When it comes to granting custody, major concerns for the judge include where the parents live and which parent is better able to provide the child with a safe and nurturing upbringing. If one parent can provide a stable environment, which may include such factors as having a strong extended family or access to a good education, that will certainly weigh heavily in the parent’s favor.

Even if the child declares a strong preference for living with one of their parents, there are situations that may be more important to the court. For example, if a parent has demonstrated a pattern of behavior that leads the court to believe the parent could hurt the child, this will be taken into consideration. A history of emotionally or physically abusive behavior would certainly be a red flag on a parent’s record. And if a parent has a legal record that includes violence, jail time, or drug and alcohol abuse, that would be a substantial factor in the court’s decision-making process.

How Much Weight Goes to the Child’s Preference?

The court has made it clear that the child’s preference is important, but there is no clear mandate on how to determine when the child’s wishes will be granted. Instead, the court has declared that three factors must be considered in these cases:

• The child’s age: While the court has not declared a particular age when a child’s wishes become relevant, the older a child is, the more capable they are of making an informed decision about physical custody and visitation rights.
• The child’s maturity and intelligence: It is up to the judge to decide on a case-by-case basis if the child is able to fully consider their own best interests.
• The reasons given for the preference: Regardless of the child’s age, it’s up to the judge to determine whether the reasons the child is providing are sensible and coherent.

When a judge considers all of these factors in light of the evidence that’s been presented, the child’s wishes could be the determining factor in some cases. Ultimately, however, the court will make its decision based upon how it sees the child’s best interests.

Do Children Have to Testify in Court?

The court understands that testifying can be traumatizing for children at any age. That’s why the judge will often choose to speak with the children in a less formal setting, such as the judge’s chambers. For any meeting between the judge and children in divorce proceedings, attorneys for both parents will be present, and they will be allowed to ask questions.  A court reporter will also be in attendance to record these discussions.

Are Children Allowed to Refuse Visitation?

There is no specific age when children are legally allowed to refuse a legal visitation with a parent. Parents are legally obligated to comply with legal visitation requests. If you are doing everything reasonably expected to accommodate the visitation, you are in compliance with the law.

A parent is not expected to physically force their child to attend a visitation if the child refuses to go. In these cases, it may be best to make a request with the court to modify the existing order.

Reaching a custody or visitation arrangement that suits your child’s best interests is often complicated. If you have questions about the custody process, you don’t have to navigate this process on your own: contact a Pennsylvania divorce lawyer at (610) 645-0100.