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 heard.
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.
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