Monday, April 27, 2015

When Can My Child Decide Where To Live?

The short answer is when she's eighteen and a legal adult.  But if you're asking that question, it's likely that Junior is under the age of majority and has expressed a strong desire to live with you.

It's hard to listen to the plaintive pleas of a child who doesn't want to return to her primary residence.  That feeling of helplessness as a parent is gut-wrenching.  Still, a change of custody is the toughest, most expensive brand of family law litigation, so a thoughtful analysis is in order.

This may be the most formative transaction of your child's young life and cannot be taken lightly.  Under the Child Custody Act, a child's preference is only one of many factors, and can be weighted differently according to the circumstances. 

I usually begin with the following analysis in the initial consult:

1.    How old is your child?  The younger the child, the less likely his preference taken into account.  Sasha's opinion always matters, but the Court is going to want to know if he is of "suitable maturity" to make that call for the right reasons.  The promise of a puppy should not be the motivation.

2.    What exactly is the child telling you?  Is she specific in her desires or do you sense that she has conflicting loyalties?  Is she telling you what she believes you want--or better yet--need to hear. What are the circumstances surrounding her statement to you?  Has your teenager just been grounded by her disciplinarian mother?  Is she being petulant or sincere?  If the child is ambivalent or unclear, it's best not to proceed. 

3.  When is the child expressing this desire?    Does it occur in your ex's driveway at the end of your parenting time weekend?  Put yourself in your offspring's place.  It's hard to say goodbye to someone you love dearly, no matter who's waiting on the porch.  You can bet Chip is saying the same thing to his mom when she drops him off on Friday. Maybe it's possible to spend more time together without a major legal battle, by getting involved as a coach or in other extracurriculars. 

4.   Are there professionals or unbiased third parties who will support the child's preference:  Were you approached by a therapist, counselor, caregiver or teacher who has unequivocally expressed concerns about your child's well being while in the care of the other parent or her household?  My experience is that these folks may be well-meaning, but when put on the stand, often dilute their opinions or recommendations.  Try to get their comments in writing. 

4.  Have you previously raised this in in Court without success?  Courts draw a "bright line" after each change of custody request is considered.  If your child's preference has already recently been considered, there would need to be other extenuating circumstances for the Court to get involved.  So often the frustrated parent comes to see me after the Court's made the decision.  There's not much to be done at that point. Be sure to work with an experienced attorney and best prepare your case from the onset.  There may be months of needed groundwork before you officially file.

5.  Can you afford to fund the battle?  Child custody battles are very costly.  The process is long and arduous and cannot be decided overnight, nor without a hearing, unless there is clear and imminent danger to the child.  Do you have the  resources to fund the litigation and hire the necessary experts to support your claim? 

6.  Can your child afford the battle?  If your son is worrying about his living arrangement and not about acquiring the next video game, then he's already under considerable stress.  How is his emotional health?  If he's depressed, anxious, or underachieving at school, being caught in the midst of litigation will surely exacerbate his condition. 

It would seem then that there is never a good time to proceed, but like all tough decisions, it's a weighing game.  Putting your child through the rigors of a custody battle, may, in the end, save him.  Not listening to your child, not acting on his rational desires and not fighting for him can cause more harm than the fight in some cases.

Sometimes the decision isn't entirely based upon the immediate outcome.  One mother fought a long and costly battle to change the domicile of her teenagers after her new husband finally found a decent job which required a move to a distant state.  I advised her that the likelihood of success was not great and the cost would be high. 

The woman smoothed her dress, straightened her shoulders and said softly: "I want my children to know that I wanted them, and I fought for them.  Whatever happens, I can live with.  They need to know that I loved them enough to not walk away without a fight." 

Hard to argue with such logic. 

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