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Oklahoma Custody Preference: Does The Tail Wag the Dog?

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There is a common misconception that a child can decide where they want to live at the age of twelve. I get a call asking about this almost every week. While a child may state a preference, there is an enormous difference between a child expressing a preference and a child making a decision. I am going to explain how this works and what you need to know.

The preference of a 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 has to be old enough to state a preference. The statute states that there is a rebuttable presumption that the child is old enough at age twelve.  The keyword here is rebuttable. What this means is that every child is different. Some twelve-year-olds may be mature enough to state a preference, and others may not. So, just because a child hits the magic number of twelve does not automatically mean they can express a preference or that any stated preference will carry any weight with the court.

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. Sometimes that is in line with the preference, sometimes it is not.

Best Interest

Even when a child is old enough to state a preference, the court has to determine whether or not it is in the child’s best interest to allow them to state a preference. Often the court will appoint a Guardian Ad Litem to represent the child’s best interest. 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 one the hard way. I always try to determine if there really is a preference. And, I don’t do this by talking to the child, and neither should you! So there is no 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 probably tell you exactly 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 say he wants to live with me. 

I’m going to call B.S. on this one.

This sounds like a parent who has not yet read this article and has asked the child where they want to live.

Don’t ask a child where he wants to live. He may tell you what you want to hear and that can result in a train wreck.

A good example:

Jimmie told his mom, 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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