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"Best Interest Factors," Factor (I) |
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( I ) The reasonable preference of the child, if the court considers the child to be of sufficient age to express a preference.
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(A) Love, affection, other emotional ties (B) Capacity to give love, affection, guidance (C) Capacity of parties to provide for the child (G) Mental and physical health (H) Home, school, and community record |
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This information comes directly from the Washtenaw County website which is "public domain." Except for formatting, no changes have been made to this material. It is included herein with the specific knowledge of the County webmaster. Further, as a Washtenaw County Circuit Court writing, this is neither binding precedent nor governing dictate even on other judges in this specific county. Footnote 1: Written by The Honorable Judge John N. Kirkendall, Family Division, Washtenaw County Trial Court, Ann Arbor, Michigan. The author gratefully acknowledges contributions from the following lawyers and judges: Craig S. Ross, Esq., Washtenaw County Friend of the Court's Office; Norman N. Robbins, Esq., domestic relations practitioner, author and lecturer; Hon. Bruce A. Newman, Genesee County Probate Judge; Hon. Joan E. Young, Oakland County Circuit Judge; and Monika H. Sacks, domestic relations practitioner, author and lecturer. They have reviewed the chart and suggested additions and improvements. I thank Stuart D. Lurie, law clerk, who has helped revise the chart since its first publication. Errors are mine. The chart should be viewed as "evolving", not "finished." Therefore, the reader's suggestions and comments will be helpful. Footnote 15: Gulyas v Gulyas, 75 Mich. App. 138 (1977), where judge held in camera discussion with children, no record made, parties stipulated to the private conversation out of their presence, and judge did not disclose contents of discussion, affirmed on appeal. Hon. Dorothy Riley in a strong dissent states that the failure of the trial court to provide substantive account of an in camera interview effectively frustrates meaningful appellate review and is therefore a clear error on a major issue. Bowers v Bowers, 198 Mich. App. 320 (1993) demonstrates importance of sealed transcript being made of an in camera interview with child. Bowers v Bowers, 190 Mich. App. 51 (1991) states that children ages 6 and 9 are not too young to express their preferences as a matter of law. In Wilkins v Wilkins, 149 Mich. App. 779 (1986) the trial court said since the children were 10 years of age and younger, they were not of sufficient age to express a preference. (This point is apparently not important to the court where factors were all considered and no prejudice results.) In Curless v Curless, 137 Mich. App. 673 (1984) court did not consider children's preferences saying they were too young. In affirming the trial court, the Court of Appeals explains this is discretionary with the trial court. DeGrow v DeGrow, 112 Mich. App. 260 (1982), emphasizes that child's preference does not outweigh all other factors, but is just one factor to take into account. Siwik v Siwik, 89 Mich. App. 603 (1979) shows that the trial court will not be reversed where it interviews a 6-year-old child and determines based upon the interview that the child is not of sufficient age to express a preference. This is left to the sound discretion of the court. Stevens v Stevens, 86 Mich. App. 258 (1978) states that failure of a trial court to speak with child in custody dispute generally requires remand. Burghdoff v Burghdoff, 66 Mich. App. 608 (1976) states that an in camera conference is generally the best way for the judge to determine the preference of the child. The conference should be restricted in scope. The child should not be involved in assisting the court determine the moral fitness of the parties. The test in determining whether the child is of sufficient age is not the test for a witness in a courtroom, e.g., "child has the intelligence and sense of obligation to tell the truth" and the trial court does not have to make such a finding. The child should not be expected to testify in open court. In Roudabush v Roudabush, 62 Mich. App. 391 (1975), the court declined to interview the child. The case was remanded for further proceedings. The appellate court states that the statutes permits but does not require trial court to consider the preference of a child involved in a custody dispute, but where there is a significant environmental difference between the parties, the court should speak informally with the child, preferably in chambers. While many trial judges empathize with the need for the appellate courts to know what occurs in chambers during interviews with minor children, they are also mindful of the effects on children of bringing into chambers the trappings of the courtroom -- a reporter and recording equipment, for example. |
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"The Messy (Legal) Steps of Divorce" |
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"The Messy (Legal) Steps of Divorce" |
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"The Messy (Legal) Steps of Divorce" |
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