Facts: Mother and Father are the never-married parents of Child. After parentage was established, a custody dispute followed.

In considering the child’s best-interest factors, the trial court concluded that the factor requiring the court to hear the child’s preference was inapplicable, that Father withdrew his request for the trial court to hear Child’s preference, that Child was in counseling and would be traumatized by having to testify, and that the guardian ad litem advocated against Child testifying. For those reasons, the Court did not hear Child’s preference.

The trial court awarded custody to Father and limited, supervised visitation to Mother.

Mother appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Mother argued the trial court erred by excluding Child’s testimony.

In determining a child’s best interest, Tennessee Code Annotated § 36-6-106(a)(13) requires trial courts to consider the “reasonable preference of the child if 12 years of age or older.”

Still, the decision to exclude a child’s testimony does not necessarily violate the statutory mandate. Determining a child’s best interest is a fact-sensitive inquiry, and the relevancy and weight to be given each factor depends on the unique facts of each case.

The Court found no error in the trial court’s decision:

Here, the trial court made clear findings as to why it excluded Child’s testimony. Specifically, the Court found that Child was in counseling and would be traumatized by having to testify, and the guardian ad litem advocated against the child testifying. Accordingly, the trial court found that Child’s preference was “not applicable” to its best-interest determination. A trial court has discretion to control the proceedings in its courtroom and to make evidentiary decisions, and its decisions will not be overturned absent an abuse of discretion. Here, the trial court gave sound reasons for refusing to consider Child’s preference.

Nonetheless, even if we assume, arguendo, that Child’s preference would have been to live with Mother, the preference of a child older than 12 is but one of many factors to consider in determining [their] best interest. In fact, this Court has held that the child’s preference is not controlling on the trial court, and it is error for a trial court to base its decision solely on a child’s preference.

There is good reason for this rule. While a child’s expressed preference may reflect legitimate and wise reasons, it may just as easily reflect manipulation by a parent or a successful campaign by one parent to alienate the child from the other parent. However, when a trial court is reasonably satisfied that a child has not been manipulated and the child’s reasons for [their] preference are not frivolous, it is permissible, indeed important, to give significant weight to the child’s testimony on the parent with whom [they] want to live.

Here, the trial court made numerous findings concerning Mother’s pattern of manipulating and using the children to prey on Father’s emotions. Given Mother’s propensity to emotionally manipulate her children, and the trial court’s finding that Mother is a “trigger” for this Child, it is likely that Child’s testimony would be skewed and of no probative value.

Finally, the trial court found that the majority of the [best-interest] factors weighed in favor of Father. Because the majority of the factors weigh in favor of Father being named [Child’s] primary residential parent, we cannot conclude that the trial court’s denial of Child’s testimony would have led to a different result. In short, even assuming that the trial court erred in omitting evidence of [Child’s] preference, such omission would be harmless error in view of the trial court’s other best-interest findings.

The Court affirmed the trial court’s judgment.

In re Aiden W.L. (Tennessee Court of Appeals, Western Section, December 15, 2022).

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