Best interest of the child factor (i) – “I want to live with . . .”
Best interest of the child factor (i) examines if it is ever appropriate for a child to decide who to live with?
Frankly, the short answer is no. A child is not a parent. A child is a child and it is the parents responsibility to raise a child. However, common sense dictates that a child’s preference should not be ignored and best interest of the child factor (i) provides the legal guidance..
In child custody disputes, Michigan custody law requires a court to consider the reasonable preference of a child, provided, the child is of sufficient age to express a preference. This requirement is set forth in Michigan compiled laws section 722.23 which is more commonly referred to as the best interest of the child factors.
Factor (i) of the Michigan compiled laws section 722.23 provides: “(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.”
When is a child of “sufficient age” to express a preference?
There is no one size fits all answer to the question as every child and circumstance is different. While there is no “minimum” age for a child to express a preference a court will typically give more weight to an older child’s preference. The maturity of the child and the emotional health of the family unit plays an important role as well.
Parents should be careful.
It is typically a bad idea to involve a child in a child custody dispute and coaching a child to express a preference can be dangerous. A child is typically interviewed privately in chambers by the court to assess best interest of the child factor (i) and one of the first questions asked are questions relating to parental coaching. The court wants to make sure that parents are not involving a child in an adult process.
In addition, best interest of the child factor (i) is just one of 12 best interest of the child factors examined by the court. While Michigan law requires an examination of all 12 best interest of the child factors, there is no guarantee as to the weight a court may place on best interest of the child factor (i). Simply put, not all best interest of the child factors are necessarily weighted equally.
Sample questions to parents.
While every case is unique, it is not uncommon for a lawyer to ask questions regarding best interest of the child factor (i). Some sample question may include:
- In your opinion what is a sufficient age for children to state a preference with regard to custody?
- How old is [name of child]?
- Does he/she have a preference to be with you or your spouse? What gives you that indication?
- How do you feel the children would react to change in the established custody arrangement?
As with every best interest factor, providing specific examples may be paramount in preparing for success.
When preparing for a custody in Michigan case or parenting time case, preparation is key. Since every custody in Michigan case is unique having an understanding of the law related to custody in Michigan is paramount. We can help.
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By: Daniel Findling