Considering the Child’s Wishes—But How? Allowing Children to Speak in Their Custody Matters

In the United States, states universally may consider the child’s wishes when determining their custody placement. While their decision or preference is not binding for the judge, it allows the child meaningful participation in decisions that directly affect them. There are many ways courts can ensure a child’s voice is heard: through an interview with the judge, professional evaluations, child advocates, and even child-inclusive mediation. Yet state laws give judges broad discretion when determining how to weigh the child’s wishes. This discretion will inevitably leave some children behind without having their voices heard. Allowing children meaningful participation in their custody proceedings is not a new idea but follows a more significant global trend. Not only does their input allow them more autonomy over their life and decisions, but it can also reduce the adverse psychological implications of being silenced, allow for a greater understanding of the facts and circumstances surrounding the case, and help diminish disparate impacts from judicial discretion. The Uniform Marriage and Divorce Act has been significantly influential in family law. Since all courts are obliged to consider the child’s wishes, amending the Uniform Marriage and Divorce Act with stricter language requiring courts to give children the option to provide input will better ensure this factor is truly considered and given its due weight.