As noted in my article on the Legislative updates from the 2009 legislative session a child’s written preference of the parent that child would like to designate primary residence is gone. I think it’s important to note they did away with written preference but a child’s stated preference is still relevant to a best interest analysis. So long as the child is 12 years old and states in chambers the parent who the child would like to live with, the Court has to consider that preference (but of course is not bound by it).
Under the law that was in effect prior to September 1st 2009 the written preference was most often used in a Temporary Order setting where one party would be asking for a change in the custody arrangement. The written preference was a tool in the litigator’s toolbox that entitled a litigant to a hearing based on the written preference. While well intentioned by the legislature, this change conceivably could have some dramatically negative consequences with families faced with these circumstances. Theoretically, under the current law the party who has been chosen by the child to designate primary residence now has to rely on another basis to change primary custody. Since the remaining two grounds are either (1) voluntary relinquishment of the child for six months or (2) the child’s current living environment significantly impairs the physical health and emotional development, and the former is a very fact specific situation that applies to a very limited set of circumstances then most parties are going to fall under ground (2) which is significant impairment.
This author find this problematic for a variety of reasons. First, as a litigator you want to steer parents out of and away from custody court unless one parent is clearly unfit and not acting in a child’s best interests. The harmful effects that contentious and acrimonious custody litigation have on the child and the parents are immediate, severe and long lasting. The child’s written preference was a tool that allowed the litigator, on behalf of the parent, to enter custody litigation with the simple stated purpose of following a child’s stated desire where that child has lived (assuming the child has the requisite level of maturity to make such a decision). It allowed the litigator to avoid spewing needless and unnecessary venom at the opposing party. That tool is now gone.
