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A CHILD’S PREFERENCE IN CUSTODY CASES IS NOW DIMINISHED: LAW CHANGE

A recent Court of Appeals decision underscores the misperception of the public that a child can select the custodial parent once he or she reaches the age of 12.

Section 93-11-65 has always provided that a child over the age of 12 has the right to state a preference for which parent should have custody. Prior to 2006, the statute stated that a child over 12 had the “privilege” of choosing the parent to live with as long as both parents were fit and it was in the best interests of the child.

In 2006, the Legislature amended the statute to provide that the Chancellor “may consider the preference of a child of 12" in considering determining the best interests of the child. In the recent case of Phillips v. Phillips, NO. 2008–CA–02019–COA (Decided April 6, 2010), the Court of Appeals opined that the subtle language change in the statute has weakened the power of the child’s preference in a custody determination. In so finding, the Court affirmed a decision of a Chancellor declining to accept the preference of a 14 year old to live solely with her father.