In this video attorney Megan Wilson explains the common misconception of who your kids get to choose who they live with in a divorce case. View the video below or see the transcript to hear Megan’s explanation
This is Megan Wilson with Douglas and Runger. And since we’re going to court sparingly these days I thought I would jump on and go over a couple of common misconceptions about divorce and family law. I’m gonna get on my soapbox here for a minute because the one I get all the time is people asking me, when does my kid get to choose where they live. And the short answer is never the courts are not in the business of advocating their decision making to children and adults. Children don’t make adult decisions. And our courts. So, they never get to choose. There is a point at which they might be able to testify as to their preference. However, when a court determines custody, obey the standard by which they determine custody is in the best interest of the child and the law gives the judges 15 factors to consider when determining what’s in the child’s best interest and what parenting plan is in the child’s best interest. One of those factors is anything else that the court considers relevant. So, truly anything. Another factor is the reasonable preference of a child who is 12 or older. So what that means is if a child is 12 or older, and one of the parents calls them to testify in a divorce or custody trial, the judge has to hear from them. They have to let the child testify and hear their testimony, what they can do and what it doesn’t do most of the time when this happens is they take the child back into their office with their chambers, with the attorneys and the court reporter so that the child is not looking at both parents and choosing in front of everybody. And then the judge has what’s paramount to a conversation with the child before resuming the trial. This is just one factor a child’s preference, even if they are 1415 1617 is not determinative because like I said, they don’t get to choose. Ever. So sometimes the child’s preference isn’t reasonable, sometimes they can’t articulate why they want to live with one parent, or the other. I’ve heard children testify and their testimony very clearly favors one parent over the other because that parent has less rules and doesn’t keep as good of an eye on them. So that’s something that the courts take into account too. And that’s only if a child is 12 or older. However, I will caution you in the courts and will caution you that a lot of our judges for good reason. Take a dim view of a parent and cause their child to testify in a divorce or custody trial, especially when it doesn’t really seem necessary. There are exceptions to every rule so there are of course exceptions to that sometimes it might be really helpful to have the child come testify. Sometimes the judge just really needs to hear what the child has to say. But most of the time. It’s not necessary, and the judges don’t appreciate it very much, so as the child is 12 or older and you call them to testify the judge has to let you have to hear from them. If your child is not 12, and is younger than 12. The judge may hear from them. So if you have a nine and 11 year old, and you or the other parent wants to call that child to testify, the judge can say now they don’t have to hear from that child they don’t have to hear that child’s preference. And again, I would caution you that a lot of our judges, especially the younger children take a dim view of the parent who caused their child to testify in a custody or divorce proceeding. There are of course exceptions to that. But that’s the general rule. And I will say that the older the child is the greater weight, their testimony may be given. There’s actually some case law that says that judges should give greater weight to older children so if your child is 15, or 16, their testimony would get greater weight than a 12 year old. And so keep that in mind when you are considering whether or not you want your child to testify in court. And this is where I really get on my soapbox about this parents all the time, especially those who don’t have primary custody, tell their kids don’t worry when you’re 12, you’ll get to go to court and choose. Don’t do that. Stop doing that.
What you’re doing is telling your child that when they’re 12 years old, you’re gonna mark them down to the courthouse and make them sit in a big scary courtroom and look at both of their parents who they love more than anybody in the world, and pick one that is horrifying. I thought about the other night I was watching TV show and a prosecutor actually who’s probably in his 40s was telling the story about his parents custody case and the divorce trial, and how one time he didn’t really want to leave his dad’s house, and he just he just wanted to stay longer, and the next thing he knew the next week they were in court, and the judge was asking him to choose. And this man at 30 something years later, was still tearing up talking about it. Don’t tell your kids that it’s anxiety inducing, it means that they might have to betray another parent. Just stop. Also keep in mind that your child might not say what you want them to or what you think they will win and if they testify. A lot of times kids tell you what you want to hear. And they might have told you they want to come live with you and told the other parent the exact same thing. You just don’t know. So it’s risky. it’s risky because you don’t know what they say, and it’s risky because the judge might not be pleased that you put your child in that position. So, I said all of this to say your kid never gets to choose where they live, and quit telling them that when they turn 12, you’re gonna make them, because it doesn’t do anybody any good.
If you have any further questions do not hesitate to call Megan or her team at Douglass and Runger at (901) 388-5805 relating to other questions you may have about divorce process.