As an Oklahoma Fathers Rights Attorney I have noticed that there is a common misconception that a child can decide where they live at the age of twelve. I get a call about this almost every week. While a child may state a preference, the difference between preference and decision is huge.
The preference of child is addressed in 43 O.S. § 113. Anybody can read the statute. However, I bet what you really want to know is how I evaluate a preference case.
Below is the method I use to evaluate a preference case.
Rebuttable Presumption
A child must be old enough to state a preference. The statute creates a rebuttable presumption that the child is old enough at age twelve. However, every twelve-year-old is different. Consequently, a twelve-year-old may not express a binding preference. In practice, the Oklahoma Fathers Rights Attorney preference of child weighs the evidence but remains rebuttable.
My personal unofficial, unwritten “rule” is that the older a child, the more weight the court is likely to give their preference. In other words, a seventeen-year-old is probably going to get more consideration than a twelve-year-old.
Just because a child is old enough to state a preference, that does not make it automatic. The court must determine what is in the child’s best interest.
Best Interest
Even when a child can state a preference, the court must determine if it serves the child’s best interests. Additionally, in practice, the Oklahoma Fathers Rights Attorney preference of child guides the court. A Guardian Ad Litem represents the child’s interests. If the court does not think it is in the child’s best interest, their preference does not matter. So, it is imperative to know your judge and how they handle a preference case.
Is There Really a Preference?
Many parents learn this the hard way. I always try to determine if there really is a preference. This reflects the Oklahoma Fathers Rights Attorney preference of child in practice. Moreover, I don’t do this by talking to the child, nor should you. To avoid confusion, please don’t put your kids in the middle of a custody case. Don’t ask your kids where they want to live. If you do, they will tell you what they think you want to hear.
“If I don’t ask, how will I know if our kid wants to live with me?”
It’s not necessary to ask. They will approach you the same way they approach you when they want twenty dollars for something. The child will approach the other parent. They will tell anyone that will listen. There is no need to ask.
The other thing discussing this will do is possibly make the judge think the child has been coached. That is the exact reason I never ask a child which parent they want to live with. It taints the case from day one.
Kids this age want to please their parents. They want their parent’s approval. So, what happens? When the kids are with Mom, they tell Mom what she wants to hear. When the kids are with Dad, they tell Dad what he wants to hear.
What Does a Good Case Look Like?
Here is what a good case and a bad case might look like:
A bad example:
Jimmie wants to live with me but is afraid to tell his mom. If the judge just talks to little Jimmie, I know he will tell the truth and say he wants to live with me.
I’m going to call B.S. on this one. If little Jimmie won’t tell the other parent, little Jimmie won’t tell the judge. No matter how scary the other parent may be, talking to the Judge is a hell of a lot more scary than telling the other parent. This is an example of a kid telling a parent what the kid thinks that parent wants to hear.
This sounds like a parent who has not yet read this article and has asked the child where they want to live.
A good example:
Jimmie told his mom, his relatives, his best friend, his friend’s parents, his teachers and is posting on social media that he wants to live with me.
See the difference between these two examples? This first example is wishful thinking. The second example is a child on a mission—a big difference.
One Step Even Further
I like to take things even one step further. As a result, even when I think I have a solid preference case, I look for another reason to modify whenever possible. We will discuss modifications in a future article. Still, the takeaway point is that a preference case is always stronger when you have additional and separate grounds to modify.
At What Age Can a Child Choose Where They Live in Oklahoma?
They can decide at eighteen.
A child can state a preference at twelve, maybe.
Big Difference.
Pete D. Louden
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