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A Better Partnership
June 28, 2015

COA: Proper consideration of a child’s best interests in custodial dispute does not require court to interview the child to determine the child’s reasonable preference

In Maier v. Maier, No. 322109, the Court of Appeals held that the trial court did not err when it declined to interview the child at issue for the purpose of determining the child’s reasonable parental preference, a factor considered when deciding the child’s best interests in a custody dispute.  Further, the Court of Appeals held that the trial court did not abuse its discretion when it reached a custody decision without considering the plaintiff’s psychological condition, committed harmless error by considering the plaintiff’s failure to abide by court orders when determining best-interest factors, and any erroneous admission of hearsay testimony did not reach the level of bias.  Finally, the Court of Appeals held that the trial court properly considered the best interests of the child when granting parenting time.  Therefore, the Court of Appeals affirmed the trial court’s award of custody and parenting time. 
 
The plaintiff and the defendant married in 2002, and their child, JM, was born three years later.  The parties separated after JM’s birth and divorced in 2012.  Custody disputes arose during the divorce proceedings and continued after the judgment of divorce. The parties were involved in several Children’s Protective Services (CPS) investigations initiated by the plaintiff, but CPS did not find any reports of abuse substantiated.  In 2013, a petition to change custody was filed.  The court conducted an evidentiary hearing to determine custody, eventually granting the defendant sole legal and physical custody of JM and granting the plaintiff unsupervised scheduled visitation.  After a “cacophonous initial visitation” between JM and the plaintiff, the court modified its order and required supervision of the plaintiff’s visitation until and unless a psychological evaluation recommended otherwise.  The plaintiff appealed the order. 
 
Reviewing the trial court’s custody order for abuse of discretion, the Court of Appeals determined that the trial court did not err when it declined to interview JM to determine the child’s reasonable preference.  Although the Child Custody Act requires that a court consider the reasonable preference of a child, preliminary questions are whether the child has the capacity to formulate a preference, and if so, whether the child has formulated a preference.  An interview is one way to determine preference, but it is not essential.  In this case, the trial judge found that although JM was of sufficient age to formulate or express a reasonable preference, JM’s fragile emotional state coupled with evidence of significant efforts to influence JM’s preference rendered JM unable to form a reasonable preference.  Additionally, the Court of Appeals determined that the trial court did not abuse its discretion when it decided custody prior to the plaintiff’s ordered psychological evaluation because such evaluations cannot be the sole basis for overturning a custody decision and are merely one factor that the court considers. Further, the trial court’s determination that the plaintiff’s failure to obtain a psychological evaluation weighed against her was harmless error because four factors favored the defendant without error.  Additionally, the trial court’s admission of the plaintiff’s hearsay statement did not rise to the level of bias.  Concerning parenting time, the Court of Appeals indicated that although the trial court did not explicitly consider all statutory factors used to determine parenting time, it sufficiently reviewed and considered the factors and the record supported its conclusion.

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