I am a divorce lawyer in the Rochester area of Oakland County, Michigan. My office is easily accessible to Bloomfield, Clarkston, Birmingham, Lake Orion, Troy, Beverly Hills and Oxford. I often have discussions with people who tell me that he or she would like to file for a change of custody because his or her child has stated that the child would like to come and live with him or her rather than the other parent.
Is a child's preference to change residences from one parent's home to the other parent's home a sufficient reason for the court to modify custody?
The child's preference alone is not sufficient to allow a court to order a change of custody. An example of this is the case of Hernandez v Hernandez, COA 322164, November 18, 2014 (Unpublished). In that case the father brought a motion to modify custody based upon the alleged preference of the children to modify the custody arrangement.
The father alleged that the children expressed their desire to come and reside with him rather than remain with their mother. The father's requested modification of the court's orders would have resulted in a change to the existing custodial environment with the mother and therefore the father had to prove there was a change of circumstances or proper cause to change the custody which directly related to one of the statutory best interest factors. The court does not have to conduct an evidentiary hearing to resolve this issue; it may accept the alleged facts as true and still determine that the party seeking the change has not prevailed and dismiss the motion without further consideration of the child's best interests.
In this case, the court apparently did not find that there was a sufficient factual basis to revisit the custody issue as it refused to conduct an in camera interview of the children to determine their preferences. The Michigan Court of Appeals found that the divorce court judge did not commit reversible error in refusing to interview the children.
First, the child's preference is only one factor in the analysis of the best interest's factors and the court is not required to give the preference much weight. Second, the court stated that a child's preference regarding the custodial parent will rarely justify revisiting a custody determination. The court went on to state that the “preferences of the children may be too easily influenced by the break-up of the marriage and competition for their love between the parents. If the children's changed preferences required the grant of a motion for a new trial, the courts would be encouraging the parents to use their children as pawns in the martial break down. This situation would place undue emotional stress on the children and the parents. The court will do nothing which might encourage immature parents to use their immature offspring in a high stakes game of psychological roulette” or revenge.
This is probably appropriate because it is not proper for the parents to badger a child or attempt to influence the child through guilt, gifts or otherwise and allowing the stated preference of the child to alter the custody arrangement might provide some parents with the motivation to take such action. While this is true, unfortunately, there are still many parents that will do this regardless of whether it will cause a change in custody. There are also cases where it might be better for the child to move-in with the other parent even where there is not sufficient basis for a court to order a modification of custody.
The long and short of this is that these are complicated issues and the court will not grant a change of custody based solely upon the desire of the child to move into the home of the other parent. However, depending on the age of the child and the circumstances, the parents may want to consider voluntarily stipulating to an order for a temporary change of custody. If the parties stipulate to such an order, then the divorce courts in Oakland County will most likely sign the order and allow the change.