Must a child be interviewed for a change in custody?

8 August 2019
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Category: Blog
8 August 2019, Comments: 0

Following petitions by both parties for sole legal custody, the Michigan Court of Appeals in an unpublished opinion (Bauer vs. Waidelich, Docket # 345756), affirmed the trail court’s decision to award mother sole legal custody of the parties two minor children, age 9 and 11.

The primary issued centered around Defendant’s argument that the Trial Court committed reversible error when it failed to conduct an interview and consider the reasonable preferences of the children.

The Court of Appeals, in affirming the lower court, indicated that Kubicki vs. Sharpe 306 MI App 525 (2014), did indeed indicate that a trial court’s failure to conduct an interview to consider the child’s reasonable preference resulted in reversible error, however, the Court indicated that Kubicki did not mandate that every child over a certain age be interviewed to ascertain a reasonable preference. Concluding that, not all children have a capacity to form a preference. Additionally an interview is merely one avenue from which to adduce a child’s capacity to form a preference.

The Court of Appeals accepted the Trial Courts reasoning that, given the children’s age and maturity level, that they lacked the capacity to form an informed opinion on the issue of legal custody.

My two cents.
The unpublished opinion centers on the threshold issue of capacity of the children and the nature of legal custody. This opinion is probably limited to cases involving legal custody and the same decision may have not been reached if there was a request for a change in physical custody.

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