In making decisions regarding custody issues, a Maryland court is required to consider the “best interests” of a child. This requires consideration of a number of factors. This can include the child’s own preferences on the matter.

It is important to understand that Maryland law vests the authority with the judge, not the child, to make final determinations regarding custody and visitation. This means a couple of things. First, the judge is not required to consult with the child regarding their preferences. And second, if the judge does ask about preference, the court can decide how much weight to give the child’s wishes. The Maryland Court of Appeals has made it clear that the child’s preference may “assist the court in its exercise of discretion,” but it is not a substitute for it.

A recent decision from the Court of Special Appeals, Loar v. Loar, provides an example of how these principles work in practice. This case involves a divorced couple with three minor children. The divorce became final in 2018 in Colorado. The mother subsequently relocated with the children to Maryland, while the father moved to Ohio and remarried.

The mother eventually filed a petition in Queen Anne’s Circuit Court, seeking modification of the custody arrangements entered in Colorado as part of the divorce. The Circuit Court denied the request. On appeal, the mother cited a number of alleged legal errors by the trial court, including the judge’s failure to consult the mother’s 14-year-old daughter regarding her preferences.

One of the issues raised by the mother was her claim that the relationship between the daughter and the father had become “strained.” The father conceded this but insisted this was largely due to the mother’s “consistent attempts to argue with him in front of” the daughter. The mother then requested the judge speak with the daughter directly “toward the end of the trial.” on her petition for modification. The judge declined to do so, stating that she had not heard any “concerning issues that I would need to address with the children.” Ultimately, the judge rejected the mother’s claim that there was a sufficient change of circumstances warranting any change in the father’s existing visitation schedule.

Under the circumstances, the appellate court saw no abuse of discretion. Reiterating long-standing Maryland law, the Court said the judge “was not required to speak with the child to determine the child’s preferences.” While preference “may” be considered, it was not necessary. The trial judge offered clear and legitimate reasons for declining to speak with the child, namely that the court felt the “situation had already been tough enough on the children, and she did not want to introduce more stress into their lives.”

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This article has been provided by the Law Office of Robert Castro. For more information or questions contact our office to speak to an experienced lawyer at (301) 870-1200.

Source:

https://www.courts.state.md.us/sites/default/files/unreported-opinions/0895s20.pdf