Divorcing or divorced parents, along with parents of children born out of wedlock, often ask this question of their attorney around the time that their children become teenagers.  The quick and easy answer is no.  At least not if “decide” means “determine.”  If there is a custody order set by a judge, then only a judge can modify that order.  Not the parents, and certainly not the child.  Of course, the parents and child could all come to an agreement together regarding where the child would reside, and that agreement would control so long as no party went into court complaining that the judge’s order wasn’t being followed.  Also, the parents of, for instance, a 16 or 17 year-old could come to the realization that trying to force a nearly adult child to live with one parent or another is not only futile, but potentially destructive of parent-child relationships.

And in cases involving young or particularly immature children, who are incapable of understanding what living arrangement would actually be in their best interest, the courts are “empowered, indeed obligated,” to substitute their judgment for that of the child. See Stone v. Duffy, 219 Mass. 178, 182 (1914).

But in cases where a child of some maturity, who is approaching or has attained teenager status, has expressed a desire to live with the non-custodial parent, i.e. the parent who doesn’t have physical custody, and where that non-custodial parent wishes to accede to the child’s desire, the question is often, “will the judge consider my child’s visitation or custody preference?”

The answer to this question is “potentially.”  In R.S. vs. M.P., 72 Mass. App. Ct. 798 (2008), a case involving a divorced father of two children aged 12 and 14, who was requesting increased parenting time, the Massachusetts Appeals Court sent a case back to the trial judge for further findings, along with instructions that “[t]he preferences of the parties’ children should also be explored.”  See also Custody of a Minor, 383 Mass. 595, 602 (1981) (“it has long been the law of Massachusetts that the [physical custody] preferences of children of sufficient maturity may be considered”).

The R.S. Court also addressed the issue of how to “explore” the preference of the children: “it may be impractical (or imprudent) for the noncustodial parent to seek to obtain affidavits from (or to depose) the children . . . such considerations support the view that it is often the better practice for the judge to appoint a guardian ad litem, with authority to interview the children, in order to investigate the matter of visitation.”  Even more recently, in Altomare v. Altomare, 77 Mass. App. Ct. 601, 609-10 (2010), a case involving a mother’s request for permission to move to a distant part of Massachusetts with the children, the Appeals Court ordered the Worcester Probate and Family Court trial judge to “further determine the views of the children either directly or through the appointment of a guardian ad litem who could evaluate their expressions of preference in light of each child’s age and maturity”).  The children in Altomare were about 14 and 13 years old by the time the Appeals Court decided the case.

Because it is generally improper for one parent to ask the child how he or she feels about living with the other parent (and then get the child to sign an affidavit or submit to a deposition), and because courts are loathe to have children testify in court on such an issue, it is often the best practice to request that the court appoint a guardian ad litem to speak with the child and prepare a report for the court as to what living arrangement would be in the child’s best interest.  The report would typically include the child’s stated preference, if any, and such preference would then be given whatever weight the judge thought proper, based on the age and maturity of the child.

Massachusetts General Laws Chapter 215, section 56A provides in relevant part that

[a]ny judge of a probate court may appoint a guardian ad litem to investigate the facts of any proceeding pending in said court relating to or involving questions as to the care, custody or maintenance of minor children. . . . Said guardian ad litem shall, before final judgment or decree in such proceeding, report in writing to the court the results of the investigation, and such report shall be open to inspection to all the parties in such proceeding or their attorneys. The compensation shall be fixed by the court and shall be paid by the commonwealth, together with any expense approved by the court, upon certificate by the judge to the state treasurer.

Although the foregoing suggests that the GAL would be paid by the state, in practice the parties typically split the cost of the GAL, which is often significant.  However, having an experienced GAL to interview the parents, children, other family members and relatives, as well as doctors or teachers, can be an invaluable tool not only for ascertaining the best interest of the children, but also as a vehicle for getting evidence of the children’s actual living arrangement preference before the judge.

Attorney Kevin D. Quinlan

Uxbridge, Worcester County, Massachusetts

*I’m mindful that the vernacular title of this article ends with a preposition.  I trust the reader will forgive this liberty. J

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