A Child’s Preferences Can Influence Custody
The best interest of the child is the controlling standard in all court matters concerning child custody and visitation in Oklahoma. In determining what is in the best interests of the child, courts look to a number of factors, including a child’s preference.
When a Court Looks at a Child’s Preference
In any matter of custody or visitation — including limits on visitation — a child may express a preference as to which parent the child wishes to have custody or limits to or periods of visitation. Okla. Stat. tit. 43 § 113. Before this is done, a court will determine if it is in the child’s best interests to allow him or her to express a preference. If so, that preference may be stated or the child may give other testimony.
Oklahoma child custody laws contains a rebuttable presumption that a child who is 12 is old enough to form an intelligent preference. That means, that absent evidence that persuades the court otherwise, a child who has reached the age of 12 can state a preference that is based on experience and knowledge, both of the parent involved and that parent’s relationship with the child.
Examples of situations in which this might not be appropriate include situations where the child may feel coerced or bribed by one of the parents to express a preference for them.
Limitations on Preference
It is important to understand that while a child can express a preference, the court is not bound to honor that preference. The court will take all factors in evidence into consideration when making its decision, all the while using the best interests of the child as its standard.
Sometimes, this is done as an interview with the child, usually done in the judge’s chambers, and without the presence of the parents, who might influence a child’s responses. But if the child has had a guardian ad litem appointed, that guardian ad litem must be present with the child in the judge’s chambers. A guardian ad litem is a guardian, appointed by the court, to represent the child in a legal proceeding. This may be done when a child has been removed from the home or where circumstances, such as abuse, have existed in the home in the past. And while the parents, attorneys or other parties may provide the court with questions or topics for the court to consider in its interview of the child, the court has discretion regarding questions presented or topics to be explored when interviewing the child. Okla. Stat. tit. 43 § 113.
A recording may be requested and made of the interview conducted in chambers. This may be used by any party if the parent or parents appeal the custody or visitation determination.
It is important to understand the conditions under which a child may express their preferences and the limitations of that expressed preference. If you have questions or concerns, bring them to an experienced Tulsa child custody attorney. Help is a phone call away.
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The Wirth Law Office offers free initial consultations with an skilled Tulsa family lawyer to help you decide the best next steps in your parenting journey. Call (918) 879-1681 for a no-obligation consultation or submit a question through this website.