Rose v. Rose

In Rose v. Rose, 176 W. Va. 18, 340 S.E.2d 176 (1986), the Court discussed the issue of consulting children regarding custody selections and explained that the child's preference is not "binding on the trial court" and the parties may "introduce evidence to rebut the child's testimony." Id. at 20 n. 3, 340 S.E.2d at 178 n. 3. The Rose Court also emphasized as follows: "An inquiry should be made into the child's intelligence and maturity to see if the child's choice was intelligently made. Equally important, however, is the child's rationale for his decision. In order to be accorded weight, a child's preference for one parent over the other ought to be based on good reason (Id. at 21 n. 4, 340 S.E.2d at 179 n.4.) The Rose Court stated that "in making its examination of the child, the trial court should try to explore several aspects of the child's decision." Id. at 21 n. 4, 340 S.E.2d at 179 n. 4. Guidelines were offered regarding the lower court's determination, as follows: The trial court should give greater weight to the wishes of a child which are expressed with strength, clearness, or with great sincerity. . . . A child's preference should be given less weight where it appears that the preference is based on a desire for less rigid discipline or restraint. . . . The trial court should investigate whether the statement of preference by the child was induced by the party in whose favor the preference was expressed. If so, said statement of preference should be accorded little, if any, weight. . . . Where an otherwise intelligent child makes an illogical decision based on unimportant factors, the trial court may disregard the child's statement of preference. . . . (Id. at 21 n. 4, 340 S.E.2d at 179 n.4.)