A child’s preference in custody decisions is important in the Court’s determinations, but it is not controlling. As the ultimate arbiter of fact, the trial court is best suited to determine the weight to be given to the children’s preferences. Cardamone v. Elshoff, 442 Pa. Super. 263, 659 A.2d 575, 583 (Pa.Super. 1995). The significance of the preferences vary with age, maturity and intelligence together with the reasons given. Wheeler v. Mazur, 2002 PA Super 46, 793 A.2d 929 (Pa.Super. 2002).
A.N. v. C.M., 2017 Pa. Super. Unpub. LEXIS 2281 an unpublished 2017 case, is a good example of how a Court interprets and weighs the evidence provided by children’s testimony. In A.N. the mother and father shared physical custody with the mother having primary custody. The mother lived out of state and the children travelled for periods to the father’s home – but the majority of the time resided with the mother. Apparently, the older child did not like being with the mother because of her work schedule amongst other articulable reasons. He explained this to the Court and interestingly the Court in its Decision referred to how well reasoned the child’s preference for the father was. The younger child was more ambivalent and liked being with both parents.
The father filed a petition to challenge custody to get more custody time with the children. During en camera discussions / testimony with the Judge, the older child indicated that the mother’s work schedule took her out of the home and prevented the child from getting access to various opportunities to play sports, socialize, etc. The child was eloquent and stated the following:
“[The child] feels overburdened by her household responsibilities while Mother and Stepfather were at work, including caring for her sister and the family’s pets. She summarized her position as follows, “I feel like it would be neat to have a parent in the area . . . because without a parent it’s really just me raising my little sister and I don’t want to do that. I mean, I already wasted a lot of my childhood doing that.”
There was also an incident where the children were left alone at home for the night due to the mother’s work schedule. This ended up involving the police, although no charges were filed.
Subsequent to the father’s filing of the Petition, the mother changed her work schedule to something more cognizant of the children’s needs. Because of the change and despite the negative testimony of the older child, who clearly preferred being with the father, the Court ruled that the custody schedule would remain the same. The Court’s reasoning was that the older child’s primary reason for a change of custody was removed with the mother’s change of work schedule. Moreover, the younger child’s ambivalence to the change was also a factor in the Court’s determination.
What makes this case interesting is that the Court ruled against what it regarded as the well-reasoned opinion of the older child and gave greater weight to the mother’s change of schedule eliminating the older child’s major problem. The take away here is that the Court can make determinations that value the underlying reason for a child’s perceptions and desires for custody rather than their short-term desires for a custody change.