In custody matters, how much does the Court take the child's preference into account?

Many parents believe that if a child expresses a clear preference regarding a custody arrangement that the Court will honor that. Pursuant to the Pennsylvania Custody Statute, the Court must weight sixteen (16) separate factors – not all of which are considered equally. 

The factor regarding the child’s preference states: “The well-reasoned preference of the child, based on the child’s developmental stage, maturity and judgment.” 23 Pa.C.S.A. Sec 5328(a).

However, even if the child states a clear preference, the trial court can still overrule it.  In a recent custody case, the Pennsylvania Superior Court stated,

“With respect to a child’s stated preference, [t]he significance placed on the preference of the child who is at the center of the custody dispute is [] within the discretion of the trial judge.  We have held that … [a]lthough the express wishes of a child are not controlling in custody decisions, such wishes do constitute an important factor that must be carefully considered in determining the child’s best interest.  The weight to be attributed to a child’s testimony can best be determined by the judge before whom the child appears.  The child’s preference must be based upon good reasons and his or her maturity and intelligence must also be considered.” (See L.D.E. v. T.O., 1757 MDA 2024, page 21, FN 21.)

When considering a child’s preference, the Court weighs it along with all of the other evidence in the case, as well as whether the child may have been influenced improperly by a parent’s action.  Additionally, and notably, even if a child expresse

s a clear, non-influenced preference, the other factors in the Pennsylvania Custody Statute could outweigh it.

In a non-precedential opinion, the Superior Court thoroughly discussed the custody factors and, even though the child expressed a clear preference for father, ultimately awarded custody to the mother.  You can read the full opinion here.