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My Future, My Choice? How and When Will a Michigan Judge Consider a Child’s Preferences When Making Custody and Parenting Time Decisions?


By Stewart C.W. Weiner

Kids have little to no choice about their parents’ decision to divorce. On the one hand, the situation would appear unfair as so many of the emotional, psychological, and practical burdens that accompany a mom and dad’s breakup fall on their young shoulders. But it can be an equally heavy or even inappropriate burden for a child to be forced to choose between their parents regarding where to live, with whom they will live, and how much time they live with each parent following a divorce. 

Undoubtedly, though, every child enduring their parent’s divorce has feelings and opinions about what their immediate future should look like. Whether a Michigan judge will consider those feelings and opinions when making custody decisions involves a delicate balancing act between respecting a child’s preferences and determining the child’s best interests. While Michigan judges do have the discretion to consider a child’s preference for custody, they will only abide by that preference if those two factors align and the child has demonstrated sufficient maturity to be involved in such a consequential decision. 

A Child’s Preference Can Be One of Many Factors Involved in Determining Their Best Interests 

As in most states, a Michigan judge’s determination regarding custody involves answering an overarching and determinative question: what is in the child’s best interests? To help guide them in answering that question, Michigan law sets forth 12 statutory factors to consider when evaluating what is in the child’s best interest. One of those factors is “The reasonable preference of the child, if the court considers the child to be of sufficient age to express a preference.”

Michigan judges have broad discretion in deciding which factors to consider and how much weight to apply to each one. This analysis includes how much and whether to add a child’s expressed preferences to the mix.

No Minimum Age – It’s About Maturity

As noted, a judge can factor a child’s custody preference into their decision-making “if the court considers the child to be of sufficient age to express a preference.” As all parents know, every child grows up at their own pace. Two children of the same chronological age may have significantly different levels of maturity, rationality, and thoughtfulness. That is why, unlike some other states, Michigan law does not establish a set age at which a child’s preference may be part of the best interests’ determination.

Even when a child possesses sufficient maturity to express thoughtful opinions about their own living arrangements, the child may still be susceptible to manipulation or improper influence by one or both parents. To gain the upper hand or curry favor with the child as the judge is determining what is in the best interest of the child, a parent, or both parents, may engage in all sorts of questionable conduct, like bestowing gifts, promising more freedom, establishing more flexible or no discipline, or sometimes even badmouthing the other parent. 

That is why the judge will often order an independent investigation to be conducted to ensure the child’s preferences are genuinely their own. The judge may ask to meet with the child privately in chambers, away from the watchful eye of their parents. Alternatively, the judge may appoint a Friend of the Court representative, usually a social worker or lawyer, to separately meet with the child and each parent to evaluate the situation before issuing a report containing their conclusions and recommendations to the judge and parties.  

Even if a judge is satisfied that the child arrived at their expressed preferences without improper influence, the judge can still choose to disregard those preferences after reasonable consideration if other factors support the conclusion that acceding to the child’s wishes would be against the child’s best interests.If you have any questions regarding child custody decisions in Michigan or have concerns about your child’s rights and well-being during the divorce process, please contact Stewart Weiner at Maddin Hauser.