Child’s Opinion in Custody

Any custody award in Pennsylvania is to be based on the best interests of the child. Section 5328 of the Domestic Relations statue lays out 15 factors to be considered when awarding custody in addition to any relevant factor. One of enumerated factors is “the well-reasoned preference of the child, based on the child’s maturity and judgment.” Accordingly, there is no magic age at which a child is permitted to give their opinion on custody. Instead, the court weighs the child’s opinion and generally gives it more weight as the child is older. Children mature at different paces and perhaps the weight to be given to a 10 year old’s opinion could be greater than a 13 year old’s opinion. I think it is safe to assume teenagers are able to give a reasoned preference, will be permitted to do so, and that opinion would carry some weight.

Section 5323 provides that the court must detail the reasons for its decision either on the record in open court or in a written opinion. 23 Pa. C.S. 5323 (d). Therefore, the court must go through each factor that it considered and explain why it decided as it did. This means that the child’s preference cannot be the sole factor considered. The Superior Court has been strict in upholding the requirement for the court to go through all factors in a decision. In J.R.M. v. J.E.A., the court awarded primary custody to the mother and father appealed on the basis that the trial court did not consider the 16 factors listed in Section 5328. 2011 PA Super. 263 (2011). The Superior Court granted the appeal, agreeing that the trial court did not properly consider the factors listed in the statute. Accordingly, all parties in a custody action should be prepared to address all relevant factors in their case and not just rely on one.