Pets Pages 730–31 Traditional View Treated as personal property. – Modern Trend Treat as members of the family. Court may look at best interests – of a pet and order custody or visitation. Rationales Autonomy and best interests of the pet Property rationale Emotional comfort to a spouse that is alone Whoever undertook more care for the pet during the marriage Preferences Child’s Generally Majority Rule Court must consider a sufficiently mature custody – child’s preference but may weigh that opinion as it sees fit. Discretion in determining maturity and weight. Minority Rule Deference to the wishes of children over a specified age, e.g., 12 – or 14. (Vast) Minority Rule Court has discretion to consider a custody – child’s preference and how much weight to accord it. All States The younger the child, the less likely that his or her opinion will be – solicited or taken seriously. Two Primary Methods for Ascertaining Preferences Child’s Speaking Directly to Judge Either (1) in open court or (2) through an in camera – interview in which the child typically is promised confidentiality. By Delegation Through an Appointed Representative Testifying in Open Court FRE allow children to testify in open court. Child must understand the difference between truth and falsehood. (Preliminary questions) Two-Thirds of States Require a preliminary inquiry into a – child’s competence when the child is below a specified age. Less Preferred Alternative Stressful, traumatic May be less reliable. Child may be intimidated by presence. parents’ Interviews In Camera Best protects a emotional interests. Less traumatic. child’s More candid Kentucky, Oregon, Wyoming, DC Pages 732–34 – Due Process Challenges Creating a record of the interview facilitates appellate review in camera and protects procedural due process rights. parents’
Pets Pages 730–31 Traditional View – Treated as personal property. Modern Trend – Treat as members of the family. Court may look at best interests of a pet and order custody or visitation. Rationales Autonomy and best interests of the pet Property rationale Emotional comfort to a spouse that is alone Whoever undertook more care for the pet during the marriage Child’s Preferences Generally Majority Rule – Court must consider a sufficiently mature child’s custody preference but may weigh that opinion as it sees fit. Discretion in determining maturity and weight. Minority Rule – Deference to the wishes of children over a specified age, e.g., 12 or 14. (Vast) Minority Rule – Court has discretion to consider a child’s custody preference and how much weight to accord it. All States – The younger the child, the less likely that his or her opinion will be solicited or taken seriously. Two Primary Methods for Ascertaining Child’s Preferences Speaking Directly to Judge – Either (1) in open court or (2) through an in camera interview in which the child typically is promised confidentiality. By Delegation Through an Appointed Representative Testifying in Open Court FRE allow children to testify in open court. Child must understand the difference between truth and falsehood. (Preliminary questions) Two-Thirds of States – Require a preliminary inquiry into a child’s competence when the child is below a specified age. Less Preferred Alternative Stressful, traumatic May be less reliable. Child may be intimidated by parents’ presence. In Camera Interviews Best protects a child’s emotional interests. Less traumatic. More candid Kentucky, Oregon, Wyoming, DC – Pages 732–34 Due Process Challenges Creating a record of the in camera interview facilitates appellate review and protects parents’ procedural due process rights.
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