Will what the child wants will be taken into account? This is something that both children and parents want to know when a divorce is looming.
The short answer is yes.
In fact, under the law, the child, at any age, is allowed to have input into who they will live with. The law explicitly states that the prime concern in the decision of which parent gets custody is the best interest of the child. And the first factor in determining the child’s best interests is the child’s own wishes. However, it is not simply a matter of the judge agreeing to do whatever the kid says.
The child’s age and “maturity” are taken into account.
The law goes on to say that the wishes of the child will be viewed within the context of the child’s maturity and ability to express reason and independent preferences regarding the decision about their situation. This means that the older the child is, and the calmer and more sensible they appear to be, the more influential that child’s opinion or wishes will be.
The court allows for a child’s opinion to be heard and shared, but it puts everything in context. If the kid is 17 and sounds clear-headed, then in most cases no one will fight that choice. But if the kid is 6, it’s going to be a little bit different. Even a 3-year-old will be heard and can express their preferences. But what they say is likely not going to be a not going to be as reasoned (that is, well thought out) and their understanding of the situation not as mature. The judge will treat it accordingly, and weigh in all the other factors presented by both sides.
Using undue influence with the child will work against you.
Some parents can’t face the thought of their child not staying with them and will try various tactics to convince the child to choose them. They might offer them extra privileges or gifts or other enticements. This is deeply frowned upon by the courts. If you can prove that the other parent was bribing the child, then that parent’s case is lost. That parent would be lucky to get supervised visitation at that point.
The court’s intolerance for this kind of bribery stems directly from the law. The law lists “the willingness or ability of each parent to facilitate and encourage a close and continuing relationship than the other parent and the child” as one of the factors that must be considered in custody decisions. If you are actually bribing the child, then that shows that you don’t have any willingness or ability to facilitate or encourage a close and continuing relationship – because you are doing the exact opposite. If text messages or other proofs bring such a situation to light, that is how the court will see it.
If cooperation with the other parent breaks down, the case will get more complex and costly.
If the two parents are unable to cooperate with each other and be friendly when discussing the parenting of the children, and if court-ordered mediation fails, the court will appoint a Guardian ad Litem. This is another attorney, who will investigate the situation. This attorney, acting for the court, will also hear what the child has to say, and will make recommendations as to what they believe will protect the child’s interests. But this is a costly and time-consuming process to tack onto the divorce proceedings, so it is best to be as cooperative as possible when engaged in divorce proceedings involving children.
To sum up, the child will always be heard, and their wishes considered. But depending on their age and other aspects of the situation, the judge will weigh all the factors and seek to make the determination that appears to be in the child’s own best interests.
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