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The Legal Eagle: Children should be shielded from choosing parents in custody cases
Thursday, August 17, 2000 By Patricia G. Miller
Should children get to decide or even express an opinion about which feuding parent should have custody of them after the divorce?
Is doing so a reflection of the modern view that children aren't like pieces of furniture to be parceled out? Or is it, as some would argue, like letting a child decide whether to eat his carrots or go to the dentist?
Assuming that the child should express an opinion about something so vital to his or her everyday life, should it be the deciding factor or one of many factors?
Like many things in the law, the answers depend on several aspects of each individual case. One is the age of the child. A 6-year-old who still believes in the tooth fairy and Santa Claus is much less persuasive than the 16-year-old who weighs 180 pounds and says, "I don't care what you say. I'm not going to live with Mom, or even visit her, because I don't like her boyfriend. Besides, I'm busy this weekend."
Bet he doesn't eat his carrots if he doesn't want to, either, and no one gives him an argument. Given his age, his preference is almost the only factor that counts.
Another important aspect to be considered is the child's reasons for favoring one parent. This is where it gets more difficult for the courts. "I want to live with Dad because he lets me stay up until 2 a.m., and I don't have to eat carrots." This is a bad reason that is easily ignored.
What about, "I can talk to Dad. He listens to me. Mom gets angry if I even say I like Dad, so when I'm with her, I don't even call him." This is a reason the court will pay attention to because it strongly suggests the mom is more likely to exclude the other parent. My cat, who is very smart but never went to law school, is likely to get this one right. Dad gets custody.
Another child chooses dad because at his house she could have a dog. Again, both my cat and the court have no trouble recognizing this as a poor reason. But most cases are not quite so clear-cut.
Two children, ages 9 and 7, were asked to choose between dad in Pennsylvania and mom in Maryland. They said they wanted to stay with dad because they had more friends there. That may be a good reason depending on the friends, but then they added that dad had a big yard and a pony. That is typically not a good reason because a superior economic situation is never a reason for awarding custody.
In this case, for reasons that were not stated, the court decided the children's preference was not vital in deciding custody.
Sometimes, the courts base decisions on bad reasoning. In one case, mom abandoned the family, leaving dad to raise their daughter, which he did very well in a happy, loving environment. After three years, during which time mom made no attempt to visit her daughter, she decided she wanted custody.
Not surprisingly, the child expressed a strong desire to stay with dad. For reasons that were not stated, the trial court gave custody to mom. On appeal, Superior Court found the child's reasons more persuasive and continued dad's custody.
So, should children decide or express an opinion about who gets custody of them after their parents' divorce?
If you are the parent, try very hard to resolve the issue without going to court, because no child should be given that much responsibility. When children are forced to choose one parent over another, they inevitably feel guilty.
The grown-ups are the ones who messed up. They should shield the child and assume the responsibility themselves.
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