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  4.  | Aaron Bundy discusses child preference statements in divorce and custody cases

Aaron Bundy discusses child preference statements in divorce and custody cases

by | Jun 14, 2024 | Child Custody, Child Support, Parental Rights

In many child custody cases, a judge may consider a child’s preference as a factor in its decision. In Oklahoma, the law says that a child is of sufficient age to form an intelligent preference about custody and visitation at age 12. Children younger than 12 may also state a preference if the circumstances show that the child is intelligent and has good reasons for it. In Arkansas, there is no set age.

No matter the age of the child, many courts view child preference testimony with skepticism. A child may be subject to manipulation, especially if one parent has had the child isolated from the other parent for a significant period of time or if one parent has substantial financial resources and can promise the child a reward for stating a specific preference. Even if no one has tried to influence a child, the child may feel an extraordinary, inappropriate amount of pressure when asked to “choose” a parent.  Some judges are less comfortable than other judges with the idea of bringing a child into their office for an interview, so child preference interviews take place in several non-exclusive formats:

  • The parents may agree on what the child’s preference is, even if they do not agree about what is best for the child (in other words, a parent can claim that despite a child’s preference, the child’s best interests would be served by an alternative arrangement)
  • The child’s preference may come through the child’s counselor
  • The child preference may come through a court-appointed attorney for the child (different from a guardian ad litem)
  • The child’s preference may come through a court-appointed guardian ad litem (different from an attorney for the child)
  • The child may state a preference directly to the judge

A child’s preference does not mean the child will run the show. The judge has to consider the preference in light of all the other circumstances of the situation. If your child has a strong preference, you cannot take anything for granted, and you will need to prepare your evidence for your custody case as if the child may not be interviewed at all.

There are no laws governing what parents may discuss with their minor children. At a certain age and level of maturity, a child may voice a preference as to where and with whom they want to live. It is self-evident that the child would convey such a preference to an adult, such as a parent. However, judges often view such conversations critically even when no law or court order prohibits a parent from discussing legal matters with their minor children. Courts recognize the potential for such discussions to be harmful to a child’s well-being and to interfere with the court’s ability to make impartial decisions in child custody cases. Children are impressionable and may be easily influenced by their parents. When parents discuss adult matters with their children, they risk putting undue pressure on the children to express a preference. It is generally assumed that children want to please the parent they are with. A child’s statement to a parent that the child wants to live with that parent will invariably be viewed with skepticism. Judges are concerned that parents may use such discussions to coach or manipulate children and affect their relationship with the other parent. Children may feel caught in the middle of their parents’ conflict and may experience emotional distress as a result of these discussions. A parent whose child has disclosed a preference to them should consult with an attorney to learn how the child’s preference may be presented to the court in an acceptable, objective manner. These unwritten rules and others are only unveiled over time through both experience and advanced training. The risk of assigning your family law representation to a general practitioner or an inexperienced lawyer is that they may not even be aware of these issues, much less how to address them when encountered. Excellent lawyers have inadvertently walked their clients into these traps simply because they did not have the benefit of handling volumes of family law disputes for many years.