Another View of Children's Preferences in Child Custody Cases
I have previously written about how the Family Court considers a child's preference in custody cases. On his new Minnesota Divorce and Family Law blog, Gerald Williams addressed this subject a few weeks ago, as follows:
If I had to name the question that comes up most often, it would be this one: how old does a child of divorced, separated or unmarried parents have to be to decide which parent the child wants to live with? In typical manner, the answer is not a simple one. There is no fixed age when a child celebrates a certain birthday and suddenly holds the trump card to influence a family court judge's decision regarding child custody. It is safe to say that a 3-year-old is too young to decide. And a 17-year-old with car keys and an attitude can wield a certain amount of control over where they spend the night.
It is the ages in the interim that make things more complicated. At some point between age three and seventeen, most youngsters gains sufficient maturity to express to a guardian ad litem or custody evaluator a preference to live with one or the other parent. The guardian ad litem or custody evaluator may pass that information on to the family court judge if it believed to be sufficiently reliable and not based on the undue influence of the "preferred parent." But that point in time is not the same for every child. Therefore, it is something that is considered on a case-by-case basis.
Moreover, in most cases, if the child expresses a reliable preference for one parent, there will be other factors that support placing the child in that parent's custody. The family court might be informed that the child has such a preference, but also that the "preferred parent" provides the child with a more stable home environment, has a significant other or extended family members with whom the child has a good relationship, and/or is more inclined to support the child's contact with the other parent.
That gives the family court impetus to award custody to the "preferred parent" without resorting to the child's preference as a basis for the custody decision. Family court authorities and children's therapists are loathe to place a custody decision on the shoulders of the subject child. A child custody arrangement is required by law to be based upon the child's best interests as a whole, and if at all possible, the family court will avoid rendering a custody decision that can be said to be based primarily on the child's preference.
Source: "Child Custody: Where Does The Kid WANT To Live?" by Gerald O. Williams, posted at his Minnesota Divorce and Family Law blog.
I would like to ask for legal advice concerning my husband seeking custody of my step-son. My husband is considering seeking custody of his son from his ex-girl friend. His son is twelve years old, lives with his mentally abusive mother, and has requested to live with us. My husband pays his child support faithfully each month, and drives two to three times each year to pick up his son for weekly and monthly visits. My husband is not a dead beat father, however his child's mother often leave their son at home alone through the night to be with her boy friend. We oftentime hear her on the phone cursing and belittling him in the background. Night before last, she called and reported he packed his clothes to leave home because he wanted to live with us but she interceeded. How can we petition the court for custody?