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Report No. 257

B. Determining the Preference of the Child

5.3.1 A child's preference in matters of custody is generally taken into consideration if the child is sufficiently intelligent and mature.118 The preference must also be reasonable-the child's wishes will not be considered by the court if, e.g., it is based on which parent's home has better toys.119 In determining the preference of the child, some courts will interview the child in court chambers (after asking for each parent's permission to do so outside their presence).120

The attorneys may be present, but they may or may not be allowed to ask questions during the interview.121 The judge will usually make a record of the interview (e.g., by using a court reporter),122 but the judge can also order that the interview be kept confidential if doing so would be in the best interest of the child.123

118 Va. Code Ann. § 20-124.3(8) (courts should consider the "reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference"); Colo. Rev. Stat. Ann. § 14-10-124(1.5)(a)(II) (courts should consider the "wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule");

South Africa Children's Act, No. 38 of 2005, § 10 ("Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.").

119 Aaron Thomas, A Child's Preference in Arizona Custody Proceedings, Divorcenet,
http://www.divorcenet.com/resources/a-childs-preference-arizona-custody-proceedings.html
(last visited May 5, 2015).

120 Aaron Thomas, A Child's Preference in Maryland Custody Proceedings, Divorcenet,
http://www.divorcenet.com/resources/a-childs-preference-maryland-custody-proceedings.html
(last visited May 5, 2015); Slepkow, Slepkow & Associates, Inc., Child's Preference and Awarding Custody in Rhode Island, Hg.Org Legal Resources,
http://www.hg.org/article.asp?id=18641
(last visited May 5, 2015).

121 Id.

122 Slepkow, Slepkow & Associates, Inc., Child's Preference and Awarding Custody in Rhode Island, Hg.Org Legal Resources,
http://www.hg.org/article.asp?id=18641
(last visited May 5, 2015).

123 Aaron Thomas, A Child's Preference in Arizona Custody Proceedings, Divorcenet,
http://www.divorcenet.com/resources/a-childs-preference-arizona-custody-proceedings.html
(last visited May 5, 2015).

5.3.2 Alternatively, instead of an interview, the court can appoint a guardian ad litem to represent the child's interests.124 The guardian ad litem can submit a report regarding what is in the child's best interests, including the child's wishes for custody.125 The guardian ad litem can also testify about the child's preferences.126 The court can also have a social worker or other mental health professional testify about the child's opinion.127

124 Aaron Thomas, A Child's Preference in Maryland Custody Proceedings, Divorcenet,
http://www.divorcenet.com/resources/a-childs-preference-maryland-custody-proceedings.html
(last visited May 5, 2015); Slepkow, Slepkow & Associates, Inc., Child's Preference and Awarding Custody in Rhode Island, HG.ORG LEGAL RESOURCES,
http://www.hg.org/article.asp?id=18641
(last visited May 5, 2015).

125 Id.

126 Aaron Thomas, A Child's Preference in Maryland Custody Proceedings, Divorcenet,
http://www.divorcenet.com/resources/a-childs-preference-maryland-custody-proceedings.html
(last visited May 5, 2015).

127 Id.



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