Understanding Child’s Voice in Custody Decisions
Are you in the middle of a child custody case, and you’re wondering when and how the age of the child comes into play? My name is Carl Birkhead. I’m an attorney with Wirth Law Office in Tulsa, Oklahoma. I want to help you make law easy by talking a little bit about when and how the child gets to have a say in these types of cases.
So, I know everyone kind of knows that if a kid’s 12 years old, the court has to consider their preference. That’s a very short answer. The law treats it as, at the age of 12, there’s a rebuttable presumption that the child can make an intelligent and express an intelligent preference as to where they want to go in a child custody situation.
How Courts Evaluate a Child’s Preference
That’s not necessarily the be-all and end-all in these situations. The court still has to determine whether or not the child’s making an intelligent choice, whether or not the child is, you know, expressing this in a way that shows that they’ve thought it out, versus just going with whichever parent influenced them the most in this situation. I’ve seen it go both ways.
I’ve seen some cases where the child will go up on a stand or go into judge chambers, more likely, and just kind of talk about, well, you know, I get to eat cookies and ice cream at this place, and I got a good choice at this place, so I want to go to this place. The court’s not going to go with that.
Real-Life Experiences from the Courtroom
But I’ve also seen compelling and heartbreaking testimony from kids that just, without a doubt, show that they’re thinking this through, and they’re making this decision based on what they think is best for them. In one instance, this happened relatively early on in my career. I had a kid. He went up on the stand and went up on the stand.
He was old enough to where it wasn’t just an interview with the judge in the judge’s office. He actually took the stand in front of me, in front of the opposing counsel, in front of the parents, and just started talking, and started talking about how, you know, yeah, he had waffled back and forth, because at one point he’d said he wanted to live with mom, and then with dad, and then with mom.
Finally, he gets up on the stand. He’s like, yeah, I want to live with my mom. I know I said that I wanted to live with Dad. I said I wanted to live with Dad because that’s what I think Dad wanted me to say. But finally, I stopped thinking about what my dad wanted, and I started thinking about what would be best for me, where I would feel safe, where I would feel comforted, where I would feel that I could thrive, and that’s with my mom.
Making Informed Decisions in Child Custody
Man, I was the opposing counsel on that one. Like, I was representing the parent, the dad in that situation. There’s nothing I could do to counter that. I mean, I’m sitting there. I was within my first couple of years of practicing. I’m five years later, and I still, think about that and wonder if there’s anything I could have done differently, and I couldn’t. That child expressed a very intelligent preference.
It was very clear they thought about it. It was very clear they’d weighed those options. It was very clear that they were doing what they felt was going to be best for them to succeed. In those situations, the court takes that opinion very, very seriously, and yeah, ultimately the court went with what the kid wanted.
Contact Us for a Low-Cost Initial Strategy Session
So it depends on the situation. It depends on the child, but the magic number is 12 years old. 12 years and higher is when that becomes a factor. If you’re in a situation where your kid’s old enough to start making that preference, absolutely give us a call. I can help you kind of figure out how to navigate that as a parent, what to say, what not to say, how to speak with your child about it, and hopefully help you and help the child make the decision that’s best for them. I’m family law attorney Carl Burkhead, and I want to help you make law easy. Thank you. Call us at 918-879-1681 to schedule your strategy session today.
