Can Children Express Preference in Missouri Custody Proceedings?

When parents aren't able to agree on how they'll handle child custody after they divorce or separate, one of the worst things they can do is force their kids to take sides. Still, children do have minds of their own, and they might have strong ideas about where they'd rather live and how much time they want to spend with each parent. In Missouri, judges may take a child's wishes into account—but only in certain circumstances.

When Children's Preferences Play a Role in Custody Disputes

Whenever judges are called on to make decisions about child custody in Missouri, the state's law now requires that they start out by presuming that it would be best for the children to award each parent an equal (or approximately equal) amount of parenting time.

A parent may overcome (or "rebut") that presumption by proving that a different custody arrangement would be in the child's best interests. The judge will decide if the parent has met that burden of proof, after considering a long list of factors. That list includes the child's input, as long as it's "unobstructed" and free of any "coercion and manipulation." (Mo. Rev. Stat. § 452.375.2(8) (2023).)

Can Children Decide About Custody in Missouri?

No, children will never have the final word in a judge's custody decisions. The judge will take a child's opinions into account, as long as there isn't an indication that the child was coached, pressured, or manipulated—an issue that comes up when one parent claims the other is guilty of parental alienation.

However, even when youngsters express independent opinions about their custody preferences, those preferences won't outweigh all the other factors that judges must consider. The judge's focus will be on what's best for the child, not necessarily what the child wants.

How Old Do Children Have to Be to Express a Custody Preference?

Missouri law doesn't set an age limit for when judges will consider children's custody preferences. As a general rule, the opinions of older adolescents will probably carry more weight than the wishes of young kids.

But of course, no two children are exactly alike. Some 12-year-olds are more mature than older 15-year-olds. Along with making sure that a child hasn't been pressured into preferring one parent over the other, the judge will gauge the child's ability to make a rational choice.

Does the Child's Reasons for a Custody Preference Matter?

A child's custody preference will carry more weight if it's based on mature reasons, like the fact that one parent spends more time helping with homework, stays involved with the child's extracurricular activities, or encourages a good relationship with extended family members. In contrast, judges may discount temporary whims or preferences for a parent who pampers a child.

Do Children Have to Testify in Court About Their Custodial Preferences?

Usually, judges try to avoid having a child testify in open court. A courtroom can be an intimidating environment for children, and it can be especially difficult for them to discuss their preferences in front of both parents.

As a way of addressing those problems, Missouri law allows judges to interview children in chambers (the judge's office) to hear their wishes about custody, as well as any other relevant information they might know about. When judges choose to conduct these interviews, they must allow the parents' attorneys to participate. (Mo. Rev. Stat. § 452.385 (2023).)

An in-chambers interview can feel less formal and intimidating for children than a courtroom. However, as Missouri courts have emphasized, the law doesn't require judges to conduct an in-chambers interview. If a judge refuses a parent's request for the interview, the parent may call the child as a witness. It will be up to the judge to decide whether the child is legally qualified to testify as a competent witness, which may depend on the child's age and mental capacity. (Babbitt v. Babbitt, 15 S.W.3d 787 (Mo. Ct. App. 2000).)

Other Ways Judges Can Learn About Children's Custody Preferences

Besides interviewing children in chambers or having them testify in court, judges have other ways of learning about kids' custody preferences and the reasons behind their opinions. For example, the judge may appoint a custody evaluator who will meet with the child and prepare a report for the court. That report may include any wishes the child has expressed, along with all the other information that the evaluator has gathered about the rest of the family.

Also, Missouri law allows judges to appoint a guardian ad litem to represent the child's interests in any contested custody or visitation cases. And whenever there are claims of child abuse or neglect, the judge must appoint a guardian ad litem. This legal representative will interview everyone with knowledge about the child's wishes (including the child, if that's appropriate). At the custody trial, the guardian ad litem may testify and examine witnesses. (Mo. Rev. Stat. § 452.423 (2023).)

Can Children Refuse Visitation in Missouri?

As long as children are still minors (under 18 in Missouri), they aren't legally entitled to disobey a court's custody orders. If a child refuses to cooperate with visitation or the parenting time schedule, it's the responsibility of the custodial parent (or the parent who has the child at the time) to do everything possible to get the kid to cooperate. Otherwise, that parent could face serious legal consequences, including contempt proceedings or even criminal charges for interference with custody. (Mo. Rev. Stat. §§ 452.400.3, 565.150 (2023).)