Can the Judge Give “Decisive Weight” to a Child’s Preference?

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Recently in Jouret v.  Buteau, Docket-18-P-68 (Mass. App. Ct. April 11, 2019) (Memo and Order Pursuant to Rule 1:28), the Appeals Court of Massachusetts vacated those parts of a modification judgment that eliminated Father’s parenting time and prohibited his contact with the children, holding that the trial court should not have given the children’s preference “decisive weight.”

In Jouret, Mother and Father divorced in 2012.  The divorce judgment awarded the parties joint legal custody and Mother primary physical custody of the two minor children, with Father having supervised parenting time.  In 2017, the trial court issued a modification judgment granting Mother sole legal and physical custody and eliminating Father’s parenting time as well as his contacting of the two children.  The judge determined that for over two years, the two children had chosen not to visit with Father.  The judge also determined that the children would “refuse any order” for visits with Father and had become “entrenched in a position that the Court must honor.”  In addition, the judge did not agree with the recommendation of the Guardian ad Litem (“GAL”) that the children should reestablish some relationship with Father or the suggestion of once a month unsupervised visits with Father.  The judge determined that requiring visits with Father “could cause serious emotional and psychological damage” to the children.  Father appealed.

The Appeals Court vacated the provisions of the modification judgment that eliminated Father’s parenting time and his contact with the children.  As the Appeals Court explained, modifications of child custody determinations due to a change in circumstances are guided by the best interests of the children.  To evaluate the best interests of the children, a judge “may consider the expressions of a preference by a child in a custody dispute; however, they must be treated with caution, particularly where, as here, custody is hotly disputed.” (citing Ardizoni v. Raymond, 40 Mass. App. Ct. 734 (1996)) (internal quotations omitted).

The Appeals Court held that the trial court gave “decisive weight” to the children’s preference not to visit with Father, which was improper (citing Bak v. Bak, 24 Mass. App. Ct. 608 (1987)). The Appeals Court reasoned that the judge was to draw on the recommendations of professionals as well as the judge’s own “insight, experience and knowledge” but instead ignored the GAL’s recommendations and excessively relied upon the children’s preference.  The Appeals Court also noted that resistance by the children to visits with Father alone is not sufficient to eliminate Father’s parenting time.  The matter was remanded as to Father’s parenting time.

Should you have questions about child custody in Massachusetts, please contact our attorneys at Fitch Law Partners LLP.


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