Attorney John Mlnarik
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Will My Child’s Opinion Be Considered in a Custody Case?
Divorce often leads to child custody battles when both parents want the child for various reasons. These battles tend to lead to court dealings that may cause much time and money to resolve. These proceedings come about when the parents are unable to arrange times and a date to share the child or children and mediation has failed or is not considered be an option.
For the times parents are unable to agree, the court may decide which parent will have custody. Many factors are analyzed and among them, the child’s inclination may be an important consideration.
When courts must examine child custody disagreements, the best interest of the youth is taken into account when determining which parent the child is placed with. The overall well-being is considered by the court and the focus of the court battle. Many states have several factors that the court is required to analyze for determination of what the child’s best interests are.
When a court considers to whom to award custody, it often considers many factors that have been established by statute or common law. Such factors may include the child’s preference for parent or the other, the age and health of each parent, whether there is any history of domestic violence and whether it was inflicted upon the child or the child witnessed it, any substance abuse problems, how likely each parent is to encourage a relationship with the other parent, religious considerations, the morality of each parent, relationships with siblings or other members of the family and evidence of the relationship between the child and each parent.
Because the ultimate decision is what is best for the child, many courts do factor in the child’s preference towards one parent or another. The history of the child’s life, school, friends and relationship with the parents are all examined. Feelings about both parents are considered along with financial, emotional and psychological influences. In states where the child’s opinion is considered, it is usually required that the child be of a sufficient age or maturity that he or she can reasonably state the preference and the reasons behind it.
Due to the state by state differences, it is important to know the laws of the state where child preference is a determining or contributing factor. A family law lawyer can help explain the considerations of the relevant jurisdiction.
The Weight of the Child’s Preference
Many children may have inclination towards one parent due to behavior or reactions to stimuli. In some cases, the parent may have conditioned the youth to react in a favorable manner to them when they are not the best candidate for custody. Because of certain circumstances, other factors are analyzed when assessing the young person’s circumstances.
The age and maturity are determined to be important when developing an assessment. The reasons behind the preference of one parent should be established. Negative emotions towards one parent should be understood. Some courts or judges may feel the young adult is not mature enough to make their own decisions and their inclination may not be given as much weight. The family law judge usually has the ability to give different weight to different factors based on the credibility of the evidence.
Some youths have been influenced by one or both parents that may be revealed. This would lessen the weight and importance of the preference. These could also be bribes or threats towards the youth to ensure proper response or causing guilt and other negative emotional states. When these actions have been discovered, the preference of the child may not be used, and the actions of the parent may lead to custody being granted to the other parent.
Some instances of preference may be life experiences. When the parents are fighting, this may be a weight on the child’s state of well-being. They may perceive one parent as the victim and side with them. Other issues such as moving may cause the young adult to want to stay with the parent that is remaining in the same place. Often children do not want to start a new school, or they wish to remain in close proximity to friends.
Decisions that start, change or retain a custody arrangement may be through the reluctance to change the existing arrangement already in place, stability of a specific area or environment, keeping the child with siblings and determining factors of one specific parent that lead to a more attentive and caring outlook.
In some cases, the court may be unnecessary. This is when the parents are able to come to an understanding even after court proceedings have been initiated. Other circumstances revolve around the parents working out the difficulties and remaining a family. Generally, courts give leeway to the wishes of the parents and will provide orders based upon their agreement. A lawyer can assist in contested and uncontested cases.