One of the factors that judges can consider when determining child custody awards is the preference expressed by the minor children. However, this expressed preference is only one of the factors the court can consider, and courts have varied on how much weight they give this factor.
For example, in Baker v. Baker, the minor children (ages 9, 11, and 13) and stated the preference to live with their father, but the court awarded custody to the mother.¹ The Appellate Court emphasized that “it should be noted that the preference expressed by the children is only advisory upon the court.”² In Bake v. Bake, the children (ages 13 and 15) were allowed to choose where they lived.³ The Appellate Court upheld the original order that was based on the children’s preferences, noting that the Court’s ruling “contains not only a statement of preference, but the rationale for the preferences.”4 In Paryzek v. Paryzek, a child (age 10) stated a preference to live with his father and the trial court awarded custody to the mother.5 The Appellate Court overruled the trial court because the “findings also failed to consider the undisputed evidence of strong bonding between father and son, the most recent statement of Martin’s preference to live with his father, Vladimir’s status as primary caretaker during the two and one-half years prior to trial, and evidence that Martin thrived while living with Vladimir.”6 In Cummings v. Cummings, the Court reversed the trial court and emphasized that it was inappropriate to give the child (age 11) controlling preference.7
There are at least two takeaway points from these cases:
- The courts have considered the preference of minor children as young as 9 years old, but haven’t appeared to strictly follow the Utah Code section stating that “the desires of a child 14 years of age or older shall be given added weight . . . .”8
- A child’s preference is only one of several factors to be considered and is not binding on the trial court. Rather, the “overriding consideration in child custody determinations is the child’s best interests.”9
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1 481 P.2d 672 (Utah 1971).
2Id. at 674.
3772 P.2d 461, 464-66 (Utah Ct. App. 1989).
4Id. at 465.
5 776 P.2d 78 (Utah App. 1989).
6 Id. at 83.
7821 P.2d 472, 379 (Utah App. 1991).
8 It is worth noting that, in 2013, the Utah Legislature reduced the age at which a preference gets added weight from 16 to 14 years old. U.C.A. § 30-3-10(1)(e) (2013) (emphasis added).
9 Cummings v. Cumming, 821 P.2d 472, 479 (citing Paryzek v. Paryzek, 776 P.2d 78, 81 (Utah App.1989) (citing Hutchison v. Hutchison, 649 P.2d 38, 40 (Utah 1982)) (emphasis added).
