By: Pamela Edwards-Swift,
Certified Family Law Specialist
Since opening my family law practice, I am often asked, “when can my child say where they want to live?” My answer has been that the court may consider the wishes of a child who is of a sufficient age and maturity to form an intelligentpreference. Which means, you could have a bright 10 year old, that the judge will listen to. However, you may have a 15-year-old, that the judge will not consider their preference due to the child’s lack of maturity, or other reasons. But, it has always been the very rare occasion that the court would actually consider taking testimony (putting them on the stand) from a minor child.
Well, the times, they are a changing, as the saying goes. Effective January 1, 2012, there is a new statute (law) which states, “If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so…” Note, the word “shall.” When a statute uses that word, as opposed to may, it means the judge does not have a choice. The judge is mandated to allow the child to testify. Also, a child under the age of 14 can still address the court, if they would like to, but only if the judge allows it. In other words, under 14, it’s the judge’s decision. But, if the child is 14 of age, or older, the judge has no choice in the matter UNLESS the court finds that it is not in the child’s best interest to do so. Even then, if the court decides it is not in the best interest of a 14+ child to testify, they must still allow alternative means for the child’s opinion to be heard.
It should be noted that it is the child’s desire to testify. It is not up to mom, dad, or the court to tell the child they have to testify. The statute only applies if the child wants to testify.
Okay, so now you know a little bit about the new law. Now, it’s time for my soap box. Although, I understand the basic idea behind the statute, there is so much room for abuse here that I think the statute is a very bad idea. I cringe when I think about the manipulation which is bound to occur by one parent, or the other, or even the child themself. Quite often, in the family law arena, we will s. ee children trying to manipulate their parents. I remember a case I had early on, where the father lured the child to come live with him just after the child’s 16th birthday. What did he lure the child with? A new car! My client, the mother, who had always been the primary parent, knew this was not in the child’s best interest, but her child and the father were fighting her. After all, what 16-year-old wouldn’t want a brand-new car? My client prevailed in court, and the child was ordered to be returned to the mother. Had this statute been the law back then, the court would have been forced to consider the child’s wishes, even though the desire to live with dad was just because he bribed her. I wish I had more room, because I could go on and on about manipulation I have seen over the years by both parents and children.
So, now when I am asked, “when can my child have a say so as to where he or she wants to live?” My response will have to be, when they are 14. Notwithstanding, I encourage parents to be really careful here. Putting the kids in the middle of a divorce is never a good idea. Yes, there are those exceptions to the rule, when the child needs to be heard. But, please be careful.