The Court of Appeals in DUGUMA v. AYALEW recently decided addressed the issue of preference of the children in a custody and divorce proceeding among parents.
Appellant mother lost the custody trial with the court granting sole physical custody to the father and argued on appeal mainly:
- That the trial court abused its discretion in refusing to grant her counsel’s request for a continuance,
- That the court erred in failing to interview the children or appoint a guardian ad litem to determine the children’s wishes as to their custody and,
- That even aside from the absence of evidence as to the children’s custodial preferences, there was insufficient evidence to grant custody to appellee.
The Court of Appeals held that there was sufficient evidence at trial to grant physical custody to the father but that not ascertaining the custody preference from the children was a significant error requiring a remand.
Specifically, the trial court did not err in refusing to continue the trial but that a remand was required for the court to hear from the parties’ children and consider their wishes respecting custody — and further overall the evidence was not otherwise insufficient to support the court’s sole custody determination.
Factually, the children had resided with the mother and overseas and only visited the father during the summer months and holidays. After one of the summer visits they remained in the U.S. and started school here and thus the mother initiated the custody complaint to have them court order returned to Ethiopia and with her.
At trial the mother failed to testified after being given sufficient opportunity and essentially a default order was issued granting physical custody to the father who did testify on his own behalf and at trial.
As to the children’s preference with custody, the trial court had expressed an interest in hearing from the children, particularly one who was fourteen years old, but ultimately no evidence was elicited or put on record and, the court did not interview the children or otherwise hear from them.
In determining a child’s best interest in a custody proceeding, the court is required by statute to consider “all relevant factors,” specifically including “the wishes of the child as to his or her custodian, where practicable.”
In this case, as the court received no evidence relating to the children’s wishes, the statutory elements were not met and thus a remand was necessary.
It should be also noted that in the highly contested custody cases the court either appoints a guardian ad litem (lawyer for the children) to ascertain their position or if they are older (14 or more) will have an in-camera informal inquiry as to their preference before making a custody decision.
Moreover, the trial court generally will give a great deference to the opinion of children’s therapist or the treating physicians if either behavioral or psychological issues are in dispute.