In many child custody disputes, family law practitioners, their
clients, and the trial court are faced with the difficult decision
of deciding whether the court should hear directly from the
children regarding their custodial preferences. Involving a child
in a custody case raises concerns about the potential emotional and
psychological effects on the child as the child may feel as though
he or she is choosing one parent over the other.
In light of these concerns, some judges routinely decline to
hear from children in a custody case. Other judges will hear from a
child if the child is deemed old enough. The District of Columbia
Court of Appeals today published an opinion making it clear that children should be
In Duguma v. Ayalew, No. 15-FM-92, the Court of Appeals
held that three children, ages 7, 9, and 14, should have been
interviewed during the trial to determine their opinion as to
whether they should primarily reside with their mother in Ethiopia
or with their father in the District of Columbia. Evidence
presented to the trial court regarding how the children were faring
in the District of Columbia did not suffice for the purposes of
determining what was in the best interest of the children.
In the District of Columbia, the trial court is statutorily
required to consider "the wishes of the child as to his or her
custodian, where practicable." See D.C. Code §
16-914(a)(3)(A). Citing that code provision, the Court of Appeals
wrote that the three children were "old enough to be capable
of expressing an opinion" and concluded that it was
practicable for the trial court to consider their wishes by
interviewing them. The Court of Appeals therefore remanded the case
to the Superior Court of the District of Columbia for further
inquiry regarding the children's wishes.
Although this Court of Appeals opinion emphasizes that children
should be interviewed during a custody proceeding, the Court of
Appeals noted that the trial judge has discretion to determine the
method for taking the testimony of children, including whether the
testimony should be taken outside the presence of parents.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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