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When Is Child Old Enough To Choose?
Jan L. Warner & Jan Collins

Question: A friend sent me an article from your column some time back about child custody. I would like your opinion about whether children should be able to have a say in where they live once they reach age 12. My son spent a lot of money on lawyers trying to get custody of his son (my grandson) when he was seven years old, but my son lost the battle. My grandson lives in a terrible situation with his mother, who has been married three more times since and can’t keep a job. He will be 12 soon and tells us wants to stay with his father. But my son is gun-shy about going back to the legal system. Can you give us any encouragement?

Answer: Contrary to beliefs held by many parents and grandparents, a child can not make legal choices until he or she reaches age 18 or is emancipated before then – that is, joins the military service, marries, etc. In custody disputes, however, the court may consider the child’s preference about with whom he or she wants to live.

A child's preference regarding custody is one of a number of criteria that judges consider. Depending on the evidence presented, the judge could place a minor with one parent despite the child’s desire to live with the other. Generally speaking, the older and more mature the child, the greater weight the court may give to the child’s choice. However, the courts will generally examine the reasons behind the child’s preference to see if they are solid. For example, if the preferred parent is a lax disciplinarian or does not insist on schoolwork being done on time, the preference may well be ignored. From the practical side, however, judges want to avoid having a 15- or 16-year old child running away from a parent with whom he or she doesn’t want to live.

Judges may see the children in their offices privately rather than having them testify in the presence of their parents. In many cases today, guardians ad litem – that is, guardians for the purpose of the litigation – are appointed by the judge to act as advocates for minor children. Since each custody case depends on its peculiar facts, there are no absolutes. A parent who is serious about gaining custody of his child/children should secure an experienced attorney and prepare well. Our web viewers can click here

Question: My daughter has been living with me since her father left us when she was two years old. She has visited him and his parents sporadically, and I never really had any problems with her until she reached age 15. Since then, she has made my life a living hell. She is cutting school, hanging out with the wrong crowd, and her grades are suffering. She has become very disrespectful to me and to her teachers. I have to work, and she tells me that I don’t spend quality time with her and that she would prefer to live with her father. I am at my wit’s end, and I don’t have the money to fight her. Should I just let her go?

Answer: While teenage extortion is not new, it is frustrating. So is not knowing if this is a rebellious “stage” your daughter is going through, or whether your ex-husband and his parents are behind this sudden change in your daughter.

We remember a comedian who once said that when he sassed his parents, his father knocked him through several stages. But that was then, and your problem is now. While your daughter does not have the legal right to choose her custodian, a real-life solution might be to discuss this issue with your former husband and his parents to see if they will support your efforts. If they won’t, you have to weigh the pros and cons of letting your daughter go, and then make a difficult decision.

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