I am a divorce lawyer in the Rochester area of Oakland County, Michigan. My office is easily accessible to Clarkston, Troy, Birmingham, Lake Orion, Bloomfield, Beverly Hills and Oxford. If the parties to a divorce cannot agree upon custody and parenting time (also known as visitation) then the court must hold a trial on that issue. The court will then make its decision based upon the “best interest factors”. One of the factors the court must consider is the preference of the child. Depending upon the age of the child, the court interviews the child to determine the child's preference as to which parent should have custody.
Will the court interview a child regarding his or her preference where the parties cannot agree upon custody but the parents agree that they do not want to force the child to meet with the judge and state a preference?
Unfortunately, based upon Kubicki v Sharpe, COA No. 317614, August 28, 2014 (For Publication), the court must interview the child to determine the child's preference regarding custody if the parents cannot agree upon custody whether or not the parents want the judge to interview the child.
In that case, the father filed a motion to change custody when the mother filed a motion to change domicile from Michigan to a military base in Kansas. The father based his motion upon the move which would limit the father's parenting time with the child and take the child from his friends and family in Michigan.
In addition the father expressed his concerns with the following facts: the mother's husband was arrested for domestic violence after a fight at their home where the husband took the mother's identification, threw a miniature Doberman pinscher across the kitchen, choked it, the mother bit his wrist and kicked his dog and finally, the husband held the dog in the air and shot it in the head at point-blank range with a pistol. The husband was previously diagnosed with a major depressive disorder but denied suffering from this condition and refused to take his medication.
The parties stipulated that the child would prefer to live with his father if his mother would be away for training and waived the interview of the child by the court. The court found in favor of the father and granted him primary physical custody without interviewing the child. The mother appealed this decision.
The mother did not appeal on the basis that the court did not interview the child; however, the Michigan Court of Appeals found that the court's failure to interview the child regarding his preference, despite the parties' waiver of the interview, was reversible error. It stated that regardless of whether the parties wished for an interview, the court was affirmatively required to consider the child's preference. Further, it reiterated that children of six, and definitely of nine, years of age are old enough to have their preference given some weight in a custody dispute. In this case, the child was ten years old.
This is a published opinion which means that in any divorce case where the parties have not reached an agreement regarding custody and parenting time, the court must interview the child regarding his or her preference regardless of whether the parents want the interview or not.
Parents to a divorce that do not want to put the pressure of a stating a preference regarding his or her custody with a parent to a judge must strongly work toward coming to an agreement regarding the same. Prior to this case, it seemed that parties could agree to keep the children out of the middle of the trial, however, now, if a judge is to decide the issue of custody, the child must be interviewed.