Modification of a Custody Order: Part 13 – The Wishes of the Child

The wishes of a child in a custody modification matter are a complicated subject.  Let us start by keeping in mind that we are talking about children, who generally lack maturity, insight and perspective because, after all, they are children.

We do not let children dictate whether or not they are going to school.  We do not let children run the household.  Many laws involve age based restrictions.  All this is for good reason, yet, somehow many parents believe that the wishes of their child are the paramount consideration in a custody matter.  That is if they believe, rightly or wrongly, that their child wants to live with them.

It also is very important to remember that a custody matter is about the child and that the legal standard is what is in the best interests of the child.  It probably is in a child’s best interests to not have to choose between their parents or be put in the middle of their parents’ disputes.

The truth of the matter is that generally the wishes of the child will be considered if that child is able to articulate such.  Then the second, and probably more important question, is how much weight will a court give to the wishes of a child.

When explaining this to clients over the years I typically give the following examples of “the wishes of the child.”  The first is a case I had early on in my career.  My client wanted custody of his seven-year-old daughter, who was at the time living with her mother and her mother’s boyfriend.  When interviewed by her attorney this young lady articulated that she wanted to live with her daddy.  Her reason for wanting to live with her father was mommy’s boyfriend had burned her with a cigarette when she misbehaved and her mommy did nothing about it.  Clearly despite this child being young, her wish to live with her father was based upon an objectively valid reason.

On the other end of the spectrum, I had a case about five years ago in which my client’s 17-year-old son wanted to go live with his father.  His reasons for this were simple.  His father told him that he did not have to do his homework and that he could concentrate on playing team sports so he could go to college on an athletic scholarship.  His father also did not enforce a curfew and apparently let him watch pornography as well as have his girlfriend stay overnight with him when he was at his father’s house.

So now we have a young adult who can drive himself wherever he wants saying he wants to stay with his father.  However, his reasoning was immature and shortsighted.  This is the type of case where a court would not give much weight to the wishes of the child.  The problem of course is you cannot tie down this boy to keep him at his mother’s house.  The result in that case was that legally my client continued to have residential custody of her son but because he was not actually living with her, the father no longer had to pay child support, which I suspect was his motivation the whole time in seeking custody of his son.

Now these two examples are cases where the weight to be given to a child’s wishes is obvious.  Unfortunately, the vast majority of cases are not so clear-cut.  This is because we are dealing with children of many ages and the varying levels maturity.

In my next post, I will explore these less clear cases.

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Posted in Divorce