A child’s preference, even if age 14 or older, may be excluded as evidence if the court finds there was no change of circumstances sufficient to reopen the case.

September 27, 2018

¶35 Father contends the court erred by “refusing to consider testimony from [Child].” Before and during trial, and through various methods, Father attempted to admit evidence of Child’s wishes as to custody, including an affidavit, Child’s school assignment, and Mother’s testimony. See Utah Code Ann. § 30-3-10(1)(e) (LexisNexis Supp. 2017) (“The court may inquire of a child and take into consideration the child’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child’s custody or parent-time otherwise. The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.”). The court rejected each of these attempts for various reasons. Assuming without deciding that the district court erred by not considering Child’s testimony regarding her wishes, excluding her testimony did not prejudice Father’s case. ¶36 As outlined above, see supra ¶ 14 & n. 1, a court must determine that a material and substantial change in circumstances has occurred before engaging in an analysis regarding the best interest of the child. See Doyle v. Doyle, 2011 UT 42, ¶ 24, 258 P.3d 553. Here, because the court determined no material and substantial change of circumstances existed, the court never conducted an analysis with respect to the best interest of Child, and it was not required to do so. Child’s testimony regarding her preferences had no effect on the court’s determination that there was no material change in circumstances but instead would only have helped the court better understand the best interest of Child. Because there was no harm in excluding Child’s testimony, we need not decide whether the court erred by excluding it.

Erickson v. Erickson, 2018 App 184 (Filed September 27, 2018)

Read entire case HERE.

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