Role of Children in Custody Proccedings
When parents divorce, a court is tasked with dividing two basic types of responsibilities between parents. One deals with important life decisions that minors are typically not yet capable of making on their own, such as what school to attend and whether a particular medical procedure conforms with the child's personal or spiritual beliefs. The other type of custody involves determining where the child is to sleep and spend time when not engaged with friends, school or other activities. Because the latter type of custody, known as physical custody, affects the child's daily home life and familial relationships, the child's preference typically comes into play in physical rather than legal custody determinations.
Best Interests of the Child
In determining a custody arrangement, a judge will look to promote the best interests of the child. This interest takes precedence over the wishes of the parents and requires the court to consider several factors outlined in state law. Although the factors vary from state to state, typical considerations include the developmental needs of the child, proximity of each parent to school and extracurricular activities, and the ability of each parent to provide adequate stability and discipline for the child. Each of these factors are highly dependent on the age of the child. For example, children 12 and older often have established friends and ties to school that a court may be hesitant to disrupt. At the same time, children entering their teens may require less daily supervision by their parents than infants, allowing a working parent to more easily accommodate the child's needs.
Wishes of the Child
Depending on the state, the preferences of your child might be one factor a judge will consider in establishing a custody arrangement. It is important to note that your child's preference is not controlling and can be outweighed by other factors if deemed to be in the child's best interest. Some states impose a specific age for consideration of the child's preference, such as 12 years old in both Oklahoma and Tennessee. Other states, including California and Florida, will consider the preference of any child deemed by the court to be of suitable age and capable of making reasoned decisions. Also, some states, including California, provide children 14 and older with the right to participate in the custody proceeding and to address the court. Participation is allowed even if the court ultimately decides that the child's preference should not be considered due to immaturity.
Once a custody arrangement has been established, most states allow it to be modified if a material change in circumstances has occurred. In many states, this change needs to be unforeseen at the time of the original order, such as if a parent becomes abusive or a habitual drug user. The practical effect of a modification is that in cases where a child was too young to participate or have his preference taken into consideration when custody was first established, might have a say during modification. But, as with the initial order, the preference of the child is only one factor, which may be outweighed by other factors that better promote the best interests of the child.