Children's Preference in Adjudicated Custody Decisions

Scott, Elizabeth S.

Part I of this Article examines the trend toward recognizing children's custody preferences. It describes the related debate over whether the child should have a decisional role and, if so, how evidence should be elicited. Part II describes the findings of a study of attitudes and practices of judges who decide custody cases in Virginia. The study was designed to determine whether children's preferences counted in the judicial decision and by what means evidence of these preferences was elicited. In Part III we analyze the findings of the Virginia study and suggest implications for legal policy. We conclude that a short, private judicial interview directed solely at eliciting the preference of the adolescent child who wants to have a voice in the decision represents the optimal accommodation of the conflicting interests of parents and children in custody determinations. We further argue that the implicit legal rule favoring the custodial choice of adolescent children should be adopted as a presumption. The "adolescent preference" rule is consistent with developmental knowledge about adolescence and with the legal trend toward recognition of adolescent autonomy in other settings. Moreover, such a rule encourages private ordering and lends greater certainty to custody decision making for a significant category of cases. In Part IV, we examine the basis of the "adolescent preference" rule and suggest that it is derived from a modern social norm supporting a voice for teenagers in important matters affecting their lives. In general, social norms and customs regarding family roles tend to play a critical role in custody decisions and policies. We suggest that the precision or generality of custody decision rules is positively (and perhaps normatively) linked to the extent of the social consensus about family roles in marriage and divorce. Attending to the function of social norms in custody law may offer a valuable perspective for legal policy.


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Georgia Law Review

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December 9, 2015