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The child's preference for custody · Family Law Talk

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  Speaker 1: Welcome to Family Law Talk. Family Law Talk presented by
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  Kirk Stangy of Stangy Law Firm PC. Stangy Law Firm
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  is a multi state family law firm. Now here's your host,
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  Kirk Stangy.
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  Speaker 2: Welcome to Family Law Talk. We have an interesting topic today.
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  The topic is the child's preference for custody And this
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  episode today is based on an article on our blog,
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  Illinois Divorce Attorneys Blog dot com dated January third, twenty
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  twenty four titled when can a child choose which parent
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  they want to live with? So, as a follow up
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  to the episode today, go on over to Illinoidivorce Attorneys
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  blog dot com and read this article for more information.
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  But let's go ahead and jump on into the topic
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  at hand. And and this topic is a common one
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  that individuals ask of their lawyers when going through a
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  divorce or custy case. And again the topic is really
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  when can choose who they want to live with? And
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  lots of individuals when they're going through a divorce or
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  custody case really think this is a big deal and
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  they think kids ultimately get to choose who they want
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  to live with, and the kids coming to court and
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  say they want to live with a mom, or they
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  say they want to live with a dad. Lots of
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  parties think that is this positive and that at that
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  point the judge is just automatically going to do what
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  the kids want. And so again this assumption, if you will,
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  this belief is often something parties think is the case
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  when going through a divorce or custom case. So, I mean,
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  practically speaking, is it true that a child can choose
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  who they want to live with? And the answer to
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  that question is really no. Okay, So, when parties are
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  going through a divorce or a custody case, a custody order,
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  which is commonly called a parenting plan has to be
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  put together. A parenting plan or cust the order can
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  be put together by consent. In other words, both parties
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  agree to it and they think it's in the best
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  interest of the children. That they can sign that, submit
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  that to the court through their lawyers, and you know,
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  oftentimes a judge will approve it if it's normal and
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  ordinary and both parties stipulate that it's in the best
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  interest of the kids. But the reality is, in some
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  cases the parties don't agree on child cussing. The parties
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  have totally different viewpoints on what ought to take place,
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  what's just, what's fair, what's in the best interest of
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  the kids, if you will, And so these cases then
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  get litigated where the parties can't agree. In some cases
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  where there's abuse or neglect alleged, or even if it's
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  just a case where there's complicated allegations, a court will
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  appoint a guardian at lightem which is an attorney appointed
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  to represent the kids in the litigation and to make
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  sure that their interests are protected in the case itself. Okay, So,
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  obviously contested custy case, whether it being a divorce or
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  if it's in a paternity case, which we generically refer
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  to the case between unmarried parents. But as these cases go,
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  you know, one party again their viewpoint might be, look,
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  the kids want to live with me, they want to
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  live with me, and they say that they do, and
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  so that ought to carry the day is the viewpoint.
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  And ultimately, again that really misses the mark in a
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  lot of respects. Okay, So let's break this down in
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  more detail. Obviously, it's important to look at the statute
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  and whatever state you reside in, your state likely has
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  a statute that deals with child custody in terms of
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  the factors the court's supposed to look at in order
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  to determine the child's best interests. And these factors can
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  be many, like that, the child's connection to their current homeschool,
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  and community could be. The child's physical and emotional needs
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  could be, the child's age and health. Each party's capability
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  and willingness to provide for basic child needs can be important. Obviously,
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  the relationship between the children and each parent can be vital.
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  And then one of these factors is in most states,
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  the wishes of the children, you know, the wishes of
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  each parent in terms of what they want, and the
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  court's got to balance these in weigh all these, okay,
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  And so I'm not saying at the same token, the
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  kid's wishes and desires has no meaning. It certainly does.
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  It's one of the factors, but it's not just positive
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  in and of itself, okay. And so to break this
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  down in more detail, the reality is in some cases
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  there could be parental alienation tactics taking place which you're
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  causing the kids to be with one parent versus the other.
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  And parntal alienation is where a parent is really saying
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  negative derogatory things about the other parents. They're on a campaign,
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  if you will, to really demean the other parent to
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  the kids. Terrible when this occurs. But in some instances,
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  the kids might not want to live with one parent
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  who's actually pretty good because they've been alienated. So again,
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  the kids wishes just don't automatically carry the day. In
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  some instances, the kids might want to live with one
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  parent because they're more lenient, Like the parent lets them
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  do whatever they want, like they can stay out late,
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  they don't have a bedtime, there's not rules, there's not
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  guidelines in that particular home. Let's say, so let's say
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  the kids want to live there because they can do
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  what they want. Well, obviously that isn't a good reason
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  for the kids to want to want to live with,
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  you know, that particular parent or not. Now, look, ultimately,
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  the older the kids get, so the closer to age eighteen,
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  you know, it's going to be different for different judges.
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  But a judge is going to be more likely to
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  take that into account. So you know, again I'm just
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  sort of painting with a broadbrush. This is not a
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  card rule, and every judge can see this differently. But
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  you know, kids get their teenage years, right, they're getting older.
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  Then oftentimes the court will take their wishes into account, right,
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  I mean, it's something the court considers. But in and
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  of itself, is it dispositive? Does a judge automatically have
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  to allow the kids to live with one parent simply
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  because this is what the kids want to know? I mean, Ultimately,
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  the judge has to determine what's in the best interest
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  of the children and what's in the best interest of
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  the children, and the judge's opinion might weigh differently than
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  what the kids wishes are. Now, look, in a lot
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  of cases, you know, the kids love both their parents,
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  and they want to see both their parents, and they
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  want to spend substantial time with both their parents. You know,
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  that's a good thing in most instances. But in some circumstances,
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  the kids could prefer one parent over the other. And again,
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  the kids get the more likely it is a judge
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  will take it into account. But it's not dispositive if
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  kids don't just get to automatically choose. Okay, So let's
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  break this down in a little more detail. Okay, Let's
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  say a child age twelve wants to live with one
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  parent and they're determined to live with that one parent. Okay?
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  Is that dispositive again? No, Although the court may listen
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  to the twelve year old's wishes and desires and they
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  may take them into account, you know, particularly if the
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  child's mature and has a well reasoned explanation, it doesn't
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  mean that this is necessarily dispositive that could persuade the judge.
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  It may not, Okay, So it's not It's not like
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  an easy win because the kids you don't want to
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  live with one parent or the other. When you think
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  about it more detailed, too, it makes a lot of
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  sense if a kid could just choose with whom they
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  wanted to live, right, that would really encourage parents to
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  then lobby the kids, right, give the kids, you know,
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  all kinds of concessions in terms of their parenting or whatnots,
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  just so the kids will come in the court and say,
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  I want to live with mom or I want to
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  live with dad. Right. So, in most circumstances, you really
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  wouldn't want it to be this way. If it were
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  this way, parents couldn't be parents because parents would really
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  have to be most concerned with being popular with their
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  kids by letting them do whatever they wanted. Okay, Let's
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  say if a child, let's say a child really doesn't
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  want to live with one parent. Okay, what effect does
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  that have. Let's say the child's in passion, if they
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  don't want to live with one parent, if they don't
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  want to spend time with one parent or not, is
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  this this positive? Well? Look, ultimately, if the kids are
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  in physical emotional danger, then that's one thing. And if
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  there's physical emotional danger, then a court in most circumstances
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  is obviously going to take that into account. Okay. And
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  if it's a divorce or custody case that hasn't been decided,
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  that's going to be taken into account in terms of
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  the initial custy determination. If there's already a custody determination
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  or you know, the divorce is complete, the custod case
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  is complete, then what often needs to happen is if
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  the kids are in physical emotional danger, then the other
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  parent needs to file emotional modify to try to modify
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  the custody order to get the kids out of danger. Okay,
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  But short of that, short of the kids being in
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  some sort of physical emotional danger, again, the kids wishes
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  are one factor. But ultimately, if the kids aren't in
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  physical or emotional danger, and there's already a parenting plan
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  or custody order in place. The kids wishes at the
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  end of the day, right, I mean, what has to
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  happen is that the parents have to abide by the
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  custo order, whatever that custody order is. That's what the
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  kids need to do in terms of when they're with
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  my and when they're with that or whatnot. But short
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  of physical emotional danger, look again, their wishes are just
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  one factor and one factor only. Okay, you know another
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  question lots of individuals have relates to fifty to fifty custody.
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  I mean more and more states or adopting walls, if
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  you will, which make fifty to fifty custody or shared
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  parenting a presumption or a starting point for the court.
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  And again this isn't the case in every state, but
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  more and more states seem to be trending in this direction.
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  So the question a lot of individuals have is is
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  if courts are starting with fifty to fifty custody or
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  shared parenting, what impact does the kid's wishes have? Well, look, candidly,
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  if courts are going to start with fifty to fifty
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  custody or shared parenting. You know, courts, you know, are
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  going to take the wishes of the kids into account. Again,
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  it's one factor, one factor only, and they take their
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  wishes into account again, particularly the older the kids actually are,
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  you know, not when they're young, but we're talking teenage years.
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  But oftentimes, again, their wishes aren't going to be enough
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  to overcome that presumption of fifty to fifty cussy again
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  unless they're you know, physical emotional danger to the kids
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  and their physical emotional well being is at risk. You know,
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  in most of these cases, fifty to fifty custody or
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  something close to that is what's going to happen. And
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  so you know, taking that into account. The advent of
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  shared parenting or fifty to fifty custing in a way
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  makes the kids wishes even less meaningful in a way,
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  because most courts are going to do fifty to fifty
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  custody and that's where they're going to start, and so
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  the kids wishes not as significant as previous times when
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  kids would predominantly live in one home and then the
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  kids would go to the other parents' house every other weekend, right,
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  you know, that used to be more common and some
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  states still do that, but more and more states moving
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  in the direction of fifty to fifty cussy again makes
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  the wishes of the kids less impactful because most courts,
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  in spite of the wishes of the kids, even if
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  they prefer to be in one home over the other,
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  most of the time, you know, more and more judges
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  are doing fifty to fifty cuss. Again, fifty fifty cussy
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  not automatic in every state, and even in states where
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  it's presumption, courts can overcome that presumption with facts and evidence,
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  and theoretically, again, the kids wishes could be enough to
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  overcome the presumption, but oftentimes it's not. Where the kids
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  are simply preferred to be in one home, you know,
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  more for preference reasons, or the one parent's more lenient,
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  let's say, you know, that's probably not going to be
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  enough to overcome that presumption. All right, Well, this is
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  definitely an interesting topic, one that individuals ask about a lot,
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  so I wanted to talk about it on Family Law
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  Talk again as a follow up to the episode. Today,
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  going over to Illinois Divorce attorneys blog dot com, read
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  the article titled when can a child choose which parent
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  they want to live with? The day of the article
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  is January third, twenty twenty four. That'll give you more
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  information on this topic. But thanks for tuning in today.
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  Stay tuned o our next episode of Family Law Talk
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  coming up. Thank you very much.
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  Speaker 1: Thank you for listening to Family Law Talk with Kirk Stangy.
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  Is it Stangy Lawfirm dot com for more about today's
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