Preference of Child

Preference of Child

   A better way than in camera hearing to get the child’s preferences before the court may be through admission of the child’s hearsay statements, through the testimony of the guardian ad litem, or through professional personnel.  In re Hefer
   There are problems with making the decision of the child the determinant; such an approach places a tremendous amount of pressure on the child and such reliance provides an incentive for parental manipulation and intimidation of the child, and an opportunity for a child’s manipulation of the parents.  In re Hefer
   While it has been said that a child’s preference as to custody should only be given weight when it is based on sound reasoning, the statute does not require the child to give a good reason for his preference.  In re Wycoff
   In custody preceding the trial court is in a good position to evaluate the credibility, temperaments, personalities, and capabilities of both parents along with an inference from the totality of the child’s statements and under these circumstances, therefore, the trial court did not err in failing to specifically ask the child whether she preferred to live with her father or her mother.  In re Balzell
   Where the father, as the sole surviving parent, wished to have custody of the children, and they wished to live with him and did not wish to be separated from each other, there was sufficient evidence to support the trial court’s decision toward custody to father.  Tranel v. Lutgen
   Even had the five year old child unequivocally indicated a preference for living with his father, this preference, while entitled to consideration, is not binding on the court in determining custody.  Cooper v. Cooper
The preferences of a child, especially one who is mature, are to be given serious weight in custody decisions, especially where the child’s desire is based upon reasons related to his best interests such as a desire to remain with friends, to continue attending the same school and to remain in the same environment.  In re Siegal
   Record demonstrated that the court was adequately apprised of the children’s wishes and gave them due consideration in determining custody where guardian ad litem stated that the children felt that they could communicate better with their mother, and they were upset with their father for swearing at mother and degrading her in front of them.  In re Smith
   Although the act requires that the court consider the wishes of the children, when these wishes conflict, the court does not abuse its discretion in giving greater weight to the desires of the older and more mature child.  In re Lovejoy
   Although weight should be given to a child’s preference as to his custodian, such a preference may not always accord with the child’s best interest.  Allen v. Allen
   The wishes of children alone do not warrant a change in custody.  Hinton v. Searles
   Where the children told the court that they were happy and preferred to live with their mother, the children mentioned that they liked school where they were living and had made some friends there, and respondent testified that the younger boy was receiving special help for a speech problem, and that the school in which the children were enrolled had special classes for just such problems, it was against the manifest weight of the evidence for the trial court to transfer custody to the father.  Hinton v. Searles
     Preference of a child in a custody case may often be an important element for consideration by the courts but such preference, necessarily, is not controlling.  Crownover v. Crownover
   The child’s preferences are normally entitled to receive some consideration depending upon the circumstances in each case.
   Standing alone, wishes and preferences of a child do not warrant or justify a change in custodial preferences.  Rosenberger v. Rosenberger
   In determining the custody of children of divorced parents, the children’s feeling are an element to be given most serious consideration. Rosenberger v. Rosenberger
   The trial court’s determination that it was in the best interests of the children to award their custody to the defendant was not against the manifest weight of the evidence; furthermore, the children’s preference was properly considered by the court as a factor in determining their best interests.  Rosenberger v. Rosenberger
   Where the oldest child indicated a preference for his father, and his reasons for making the preference, this was a factor to be considered.  Mulvihill v. Mulvihill
   The order of the trial court in Illinois in changing custody from the mother as ordered in the trial court of California, to the father, was against the manifest weight of the evidence where the sole reason for the change was the preference of the two parties’ children.  Fin v. Finn
   The children’s desire to live with their mother was not controlling.  Filipello v. Fillipello
   Children nine and 12 years of age were not old enough, or capable enough, to choose the parent with whom they should live; their preference had to yield to their welfare as determined by the court.  Filipello v. Filipello
   Preferences of children alone, when the children are under 14 years of age, should not warrant a change in custody.  Wilner v. Wilner
   If children are of sufficient maturity, their choice is an important element to be taken into account; but even the desire of older children to live with a particular parent is not binding on the court.  Filipello v. Filipello
   The fact that a 17 year old child preferred to live with her mother was not sufficient to warrant a transfer of custody from father to mother.  Elble v. Elble
   Where a child had chosen to leave her father and live with her mother, and the evidence failed to show a change of circumstances which would have warranted a modification of the provision of the decree awarding her custody to the father, the court could not, and would not, force a 17 year old girl to live with her father if she did not desire; the order to have the father pay the mother for the child’s support during her minority, and an attorney’s fee, but not to provide for the child’s college education, was affirmed.  Elble v. Elble
   The child’s preference is a proper factor to be considered by the court but per se is not sufficient standing alone to warrant a change of custody once adjudicated.  Strouse v. Strouse
   Where the court allowed a 16 year old girl to remain with her 19 year old sister instead of giving custody to the father, the court did not intend to infer that the request of a minor child, standing alone, was necessarily either decisive or controlling on the question of custody; it was just one factor for consideration.  Nichols v. Nichols
   Where the chancellor found both parties fit to be awarded custody of the children, and ruled that the two older girls and the boy should remain with defendant, while the two younger girls were to remain with plaintiff, thus leaving undisturbed the children’s residence, the arrangement appeared to be preferred by the children and seemed to be most satisfactory solution.  Collidge v. Coolidge
   In a situation involving a change of custody the interest of the child is preeminently the thing to be case of covert sexual encounters not amounting to cohabitation of which the child was unaware.  Cooper v. Cooper

Presumption of Harm
   There would be no presumption of any king that the child has been harmed in the case of cover sexual encounters not amounting to cohabitation of which the child was unaware.  Cooper v. Cooper

Previous Orders
   Where the court entertained evidence of child abuse by the father previous to a foreign modification, but stated that it was prevented from considering the evidence because it occurred prior to the modification, this was error, for the court had the duty to consider all facts and circumstances which related to the well-being of the children.  Hinton v. Searles
   The trial court in its consideration of the best interest of the children can make a just determination without being hindered by a previous order in another court.  Hinton v. Searles

Prior Hearing

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   The parties’ stipulation to the court’s consideration of a transcript of a prior hearing, insofar as it relates to a determination of child custody, is inconsistent with the declared policy of our state and, as such, was inoperative.  In re Akins
   Where the record was adequate for purposes of this section, the judgment was not disturbed merely because written findings of facts were not made in statutory form.  Melear v. Melear

Psychologist’s Testimony
   In considering the mental health of individuals involved in a child custody dispute, the testimony of a psychologist, although child custody dispute, the testimony of a psychologist, although providing the court with relevant evidence to aid in its considerations is not determinative.  In re Siegel
   While the testimony of psychologists is permissible in custody cases, such testimony is not determinative of the custody issue.  In re Milovich

Putative Father
   The rights of a putative father who acknowledges in illegitimate child are recognized under the law and he thereby assumes burdens along with benefits.  In re Myer

Relationship with Child
   In a child custody case, where father spent time with his son, regularly bathed and read to his son, frequently communicated with his son and performed many responsibilities associated with parenthood, while mother had trouble in disciplining son and had little time to devote to her son, the best interests of the son were best served by awarding custody to father.  In re Bush

Religious Belief
   It was improper for the trial court’s decision concerning the awarding of child custody to be premised on the belief that active participation in an organized religion should be given preference over a more passive form of religious faith.  In re Zucco
   Where evidence of the parents’ religious beliefs was admitted only as a means to gain insight into the entire family picture, and nowhere in the statements of the trial judge or in any action involved in the trial did it appear that the judge’s decision was influenced or determined by the question of religion, the inquiry into respondent’s religious beliefs was not grounds for reversal of the trial court’s custody award.  In re Ford

Remarriage
   The trial court did not err in drawing adverse inferences from the mother’s failure to call her new husband to appear on her behalf in a child custody action; as the mother’s new husband played an important part in the child’s life, the trial court should have been given the opportunity to evaluate the mother’s new husband on its own.  In re Quindry
   A subsequent marriage of a parent and stability of environment are important considerations in child custody modification proceedings.  Kjellesvik v. Shannon
   Although the mother was a fit parent, her remarriage constituted a change in circumstances necessitating a change in custody for the best interests of the child where the court found the second husband demonstrated weakness of character and instability and that his mental illness and separations from the family created an unstable environment for the child.  Kjellesvik v. Shannon
   Subsequent marriages are a factor to consider as a change in circumstances; it is not necessary for the court to find that the person having custody is an unfit person if other circumstances warrant modification.  Cave v. Cave
   Where the evidence established that the character and conduct of the person to whom the mother subsequently married was unsatisfactory, that the children’s interests were adversely affected by the earlier divorce decree awarding custody to their mother, and that the children’s father was of good moral character, the evidence was sufficient to support the decree of modification granting custody to the father.  Kline v. Kline

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