Document Type

Article

Publication Date

1988

Center/Program

Center for Gender & Sexuality Law

Abstract

Historically, courts usually paid little attention to the child's wishes in deciding which parent should have custody upon divorce. Today, statutes in many states direct courts to consider the child's preference, often as one among several factors that guide decisionmaking. With some exceptions, the law gives only general guidance and does not specify under what circumstances and to what extent the child's desire should affect the decision. Little is known about how important this factor is, what variables influence the weight accorded the child's preference, or how courts obtain and evaluate evidence about the child's wishes.

This Article began as a straightforward empirical study of the way in which courts in one state involve children in proceedings to decide their custody when their parents divorce. We were interested in how judges obtained information about children's preferences as well as judicial perceptions about the children's responses. We also wanted to learn about the extent to which judges considered the child's preference in deciding custody suits and the factors that influenced this calculation.

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