By Daniel P. Bryant, Attorney at Law And Angela Middleton, Paralegal
“My son wants to live with me.” “Can he tell the judge he doesn’t want to go over there?” “Doesn’t the judge have to listen to him?” This is one of the most frequently asked questions in child custody cases. Tennessee Code Annotated § 36-6-106 (7) states that among many other factors, the court shall consider, “The reasonable preference of the child, if twelve (12) years of age or older.” The statute also states that, “The court may hear the preference of a younger child on request. The preferences of older children should normally be given greater weight than those of younger children.”
Child preference is just one of many factors that courts uses to determine who will become primary residential parent. The court is reluctant to use younger children in these matters, because it can be detrimental to a child to feel that they are choosing between their parents, and they lack the maturity to make such a decision.
Having a child testify to a preference can actually negatively impact the preferential parent’s case. A child’s testimony or preference will not be credited if it is found to be coerced or bribed. One factor the court uses in determining a parenting plan and primary residential parent is, “The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interests of the child.” Tenn. Code Ann. § 36-6-404. If a parent is seen as bribing or coercing a child into testifying that their preference is to live with that parent, the court can find that this is a violation of the principle that fostering continued relations is good for the child. This could lead to an award of primary residential parent to the other parent. Costley v. Benjamin, 2005 WL 1950114 (Tenn. Ct. App.).
If your child is twelve or older, the court is supposed to at least consider their preference, should one of the parties wish to have the child testify. Younger children can also testify, but only upon the request of one of the parties. This is frequently addressed at a motion hearing before the trial date. Many judges in Tennessee strongly dislike hearing the opinions of younger children and without good cause will not listen. It is also a good policy to ask your attorney if your judge speaks to children in chambers or in open court on the stand subject to the grilling cross examination of the opposing attorney.
ABOUT DANIEL P. BRYANT
Daniel P. Bryant graduated Magna Cum Laude from the University of Memphis Cecil C. Humphrey’s School of Law, where he earned his J.D. degree. Before law school, Mr. Bryant earned a B.S. degree from the University of Texas at Tyler. He is a native of Tullahoma, Tenn. Mr. Bryant joined Divorce Incorporated as an associate attorney in 2010. His primary practice areas are family and juvenile law litigation and criminal defense. Mr. Bryant works primarily in our Clarksville, Tennessee office.
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