Court OK Not Asking 13 Year Old’s Custody Preference

Tennessee child custody case summary on custody preference of 13 year old.

Child preference regarding custody.

The parents in this Shelby County, Tennessee, case were never married. They had four children during their relationship until separating in 2015, but the father later rescinded his admission of paternity of some of them. At the time of their separation, the oldest child, Aiden, was eight years old. Until 2017, the mother served as primary residential parent. In that year, the father took over while the mother sought stable housing. In 2019, the parties were granted temporary joint custody of Aiden.

In 2019, the father asked the trial court to consider Aiden’s preference, and to be named primary residential parent. He alleged that the mother had interfered with his relationship. The magistrate named the father as primary residential parent, with the mother receiving 150 days per year of visitation.

A final hearing was held in 2021, in which the court named father primary residential parent. This was based on a material change of circumstances which included the mother’s arrest, the mother’s misleading father as to the paternity of the other children, and emotional distress perpetrated on the children.

The mother appealed to the Tennessee Court of Appeals, arguing only that the trial court erred in its determination as to the best interests of the children.

The appeals court noted that factual findings by the trial court are accorded a great deal of discretion, and that was especially true in this case, since there was no transcript of the lower court’s proceedings.

The trial court held that the preference of the child, who was then 13, was not applicable in the case. The father had withdrawn this request, and the trial court had held that the child would be traumatized by having to testify. The guardian ad litem had also advocated against the child testifying.

On appeal, the mother argued that the trial court should have had the child testify. The appeals court noted that trial courts have considerable discretion when it comes to allowing a child’s testimony. After reviewing the court’s decision, the appeals court held that there was no abuse of discretion. Therefore, it affirmed the ruling to exclude the child’s testimony.

It also reiterated that even if the child expressed a preference to live with the mother, this was but one of many factors, and would not have been controlling.

After reviewing all of the statutory factors, the appeals court concluded that the trial court had properly applied them. Therefore, it affirmed the lower court’s ruling and remanded the case for any necessary proceedings. The costs of the appeal were assessed against the mother.

No. W2021-01187-COA-R3-JV (Tenn. Ct. App. Dec. 15, 2022).

See original opinion for exact language. Legal citations omitted.

To learn more, see Don’t Make Her Choose: Why Parents Should Never Ask Children What Visitation They Want

To learn more, see Modifying Custody & Parenting Plans and our video, How is child custody determined in Tennessee?

See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring examples of parenting plans and child support worksheets from real cases available on Amazon.com.