One of the factors that judges can consider when determining child custody awards is the preference expressed by the minor children. However, this expressed preference is only one of the factors the court can consider, and courts have varied on how much weight they give this factor.
For example, in one case, the minor children (ages 9, 11, and 13) and stated the preference to live with their father, but the court awarded custody to the mother. The Court emphasized that the preference expressed by the children is only advisory upon the court. In another case, the children (ages 13 and 15) were allowed to choose where they lived because the original order was based on the children’s preferences and there was a rational for the preferences. In a third case, a child (age 10) stated a preference to live with his father and the trial court awarded custody to the mother. The Appellate Court stated that the trial court failed to consider the undisputed evidence of strong bonding between father and son and the most recent statement of the child’s preference to live with his father. Finally, the Court emphasized that it was inappropriate to give the child (age 11) controlling preference.
There are at least two takeaway points from these cases:
- The courts have considered the preference of minor children as young as 9 years old, but haven’t appeared to strictly follow the Utah Code section stating that “the desires of a child 14 years of age or older shall be given added weight . . . .”
- A child’s preference is only one of several factors to be considered and is not binding on the trial court. Rather, the “overriding consideration in child custody determinations is the child’s best interests.”