Is the opinion of the child ever taken into consideration in a divorce? 21 Answers as of January 10, 2011

Is the opinion of the child ever taken into consideration in a divorce? If so, at what age to the court actually take that opinion into consideration? Thank you in advance.

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Law Office of Curry & Westgate
Law Office of Curry & Westgate | Patrick Curry
Sometime the opinion of the child is taken into consideration on such issues as visitation, custody after the age of 16.
Answer Applies to: California
Replied: 1/10/2011
Saddleback Law Center
Saddleback Law Center | Paris Kalor
Yes, but there is not a set age in the statute. It depends on the maturity level of the child plus other factors. It is mostly over the age of 12.
Answer Applies to: California
Replied: 1/7/2011
Law Office of Tim W. Avery
Law Office of Tim W. Avery | Tim W. Avery
Generally the Courts do not wish to drag the children into the middle of divorce proceedings. However, if the child is at least 10 years old, the Court must listen to the child's desires by conducting an interview with the child if either parent request it, or the Court may upon on its own motion conduct an interview. Another option and sometimes the best way, is to request the Court to appoint a guardian ad litem or an attorney ad litem to represent to the court the child's desires. Even if the child has his/her desires made known to the court either by an interview with the court or through a legal representative, that is not the only, nor the deciding factor in terms of a custody determination. The child's wishes would be just one factor among many as a court decides what it believes is in the child's best interests.
Answer Applies to: Texas
Replied: 1/6/2011
Reeves Law Firm, P.C.
Reeves Law Firm, P.C. | Roy L. Reeves
Your question is an excellent one and actually easy to answer on it's face. If the child is at least 10 years old, the Court must listen to the child's desires (conduct an interview with the child) if either parent request it. In fact, the Judge may, upon his or her own motion conduct an interview. This rule came into effect in September 2009. Prior to that, the Judge had discretion in deciding whether or not to interview children and parents could ask the children to sign a document designating that child's choice of managing conservator. I for one think the new rule is much better.

Now, the unasked follow up question is not so easy to answer. How much credence the Judge gives the child's desires is dependent upon many factors: the age of the child, what the child wants and the reason, the intellect of the child or demonstrated ability to reason, and of course, just whether or not the Judge believes the child has been coached. Additionally, the Judge can, based on his or her opinions and beliefs on the matter, just not give too much weight to the child's choices.

Finally, do not think that just because the child wants it, the Court will rule that way. I like to explain it like this - if it takes 100 points to win custody, and the first person to 100 wins, you can win in one of two ways. Build yourself up (earn points) or tear the other person down (take points from them). With this premise in mind, if the child wants to live with one parent, that parent has 50 free points before we start. It does not mean the other parent cannot take those points or earn their 100 first, but it is a significant head start.

Custody is always a touchy subject, you should get competent local counsel to advise you. Local counsel knows your judge (or at least his or her politics) and a local attorney can give more specific advice or information.

My office is in Plano centrally located between the Collin County and Dallas County Courthouses. I practice in both counties and handle cases like this one. If I am local to you, please give me a call, I would like to learn more and I can give you more specific answers to your questions.
Answer Applies to: Texas
Replied: 1/6/2011
DiManna Law Office, LLC.
DiManna Law Office, LLC. | Dawn DiManna
Yes it can be, but a GAL has to establish that the child is a "mature minor" which is a legal standard. There is no set age.
Answer Applies to: New Hampshire
Replied: 1/6/2011
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    The child's wishes are always taken into consideration, but only as ONE factor in determining the best interests. The older and more mature the child gets, the more weight his/her wishes will be given, but until the child is 18 (legally an adult) his/her opinion is not controlling.
    Answer Applies to: Colorado
    Replied: 1/6/2011
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    I think you mean to ask whether the judge considers the preferences of a child in a custody matter (not "divorce"), correct? Assuming that's what you meant, the answer is "it depends" on the child's age and maturity. There is no specific age threshold. Rather, the judge will make a determination on a case by case basis; i.e., the judge will consider all the facts to determine whether the child is of "sufficient age and maturity" to incorporate that child's preferences as part of any custody determination. Even if the child is of sufficient age and maturity to have his/her preference considered, that is not the only, nor the deciding factor in terms of a custody determination. Ultimately, it is the "child's best interests" that guide the outcome. If a child expresses a preference that based on all other objective evidence is not in that child's "best interests," then that will demonstrate the child is not of sufficient maturity to have his/her wishes considered. For example, if the child wants to live with a parent because that parent lets them watch TV all the time, eat unhealthy food, etc., that demonstrates a child does not have enough sense to make choices in his/her own best interests.
    Answer Applies to: California
    Replied: 1/6/2011
    Goldberg Jones
    Goldberg Jones | Zephyr Hill
    At least in San Diego County, the age is typically 12 when the court starts
    considering the wishes of minor children.
    Answer Applies to: California
    Replied: 1/6/2011
    Kaczmarek Law Firm, LLC
    Kaczmarek Law Firm, LLC | Bridgette D. Kaczmarek
    Courts generally do not consider the opinion of the child in dissolution actions. the Courts do not want to drag the children into the middle of divorce proceedings. The best way to give a child a voice is through the use of a child and family investigator or a child's legal representative, who can meet with the child and convey the child's wishes. If the child is older then the court may consider the child's opinion since the older the child, the more likely they are to make decision, i.e. over 16.
    Answer Applies to: Colorado
    Replied: 1/6/2011
    Diefer Law Group, P.C.
    Diefer Law Group, P.C. | Abel Fernandez
    Yes, but that is a case by case decision. The court has to consider the age and maturity of the child. Also, the issues involved will be important. Thus, in some cases the court will consider the child's wishes and in other cases it will not. Usually, once the child is about 14 years old the court must at least consider the child's wishes.
    Answer Applies to: California
    Replied: 1/6/2011
    Froerer and Miles, P.C.
    Froerer and Miles, P.C. | Robert L Froerer
    The older the child is, the more his/her opinion may be considered. My view is that from approx. 14 and on, the child's opinion may be part of the evidence considered by the court. From 16 and on, it should be significantly considered.
    Answer Applies to: Utah
    Replied: 1/6/2011
    Cody and Gonillo, LLP
    Cody and Gonillo, LLP | Christine Gonilla
    The law states that the wishes of the child will be taken into consideration if the child is of sufficient age and is capable of forming an intelligent preference. But the child's wishes are just one of many other factors. If you wish to discuss in further detail you can contact our office for a free initial consultation.
    Answer Applies to: Connecticut
    Replied: 1/6/2011
    The Law Office of David J. Reed, LLC
    The Law Office of David J. Reed, LLC | David J. Reed
    Depending on the age of the child and their ability to articulate the reasoning behind their choice, the court may consider the child's wishes, although it is not the only factor considered.
    Answer Applies to: Nebraska
    Replied: 1/6/2011
    The Connelly Firm P.C.
    The Connelly Firm P.C. | Thomas Connelly
    Age is not really the issue. Most state court judges are obligated to do what is in the child's best interests. However, the courts recognize that children often don't really know what their "best interests" are. For example, my son, who is four, would probably be of the opinion that it would be in his best interest to go with whichever parent supplied him with the best opportunity to play Nintendo DS, drink soda, and eat candy. His opinion would be immaterial in his parents' (hypothetical) divorce, for obvious reasons. In summary, the courts generally will hear testimony from a child when there is no better evidence (i.e. teacher, psychological reports) of what the child *needs*, but will not usually consider what the child *wants* at any age prior to majority.
    Answer Applies to: Pennsylvania
    Replied: 1/6/2011
    Law Office of Michael E. Hendrickson
    Law Office of Michael E. Hendrickson | Michael E. Hendrickson
    Depends upon what opinion of the child you're referring to. If you mean the child's opinion as to which parent he or she would like to live with, depending upon the child's age, education, apparent maturity, etc. the judge may give it some weight along with the many other factors involved in making a decision on this particular issue.
    Answer Applies to: Virginia
    Replied: 1/5/2011
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    Yes, the opinion of your child may be taken into consideration by the court, under certain circumstances.

    Family Code Section 3042 provides: (a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody; (b) In addition to the requirements of Evidence Code Section 765(b), the court shallcontrol the examination of the child witness so as to protect the best interests of the child. The court may preclude the calling of the child as a witness where the best interests of the child so dictate and may provide alternative means of obtaining information regarding the child's preferences.

    If Minor's Counsel is appointed for the child pursuant to Family Code Section 3150, your child's wishes may be expressed through Minor's Counsel at your child's request.Family Code Section 3151(a) provides that if the child so desires, Minor's Counsel shall present the child's wishes to the Court.
    Answer Applies to: California
    Replied: 1/5/2011
    Maclean Chung Law Firm
    Maclean Chung Law Firm | G. Thomas MacLean Jr.
    Yes, the opinion of the child can be taken into account in a divorce proceeding. Often, a minor's counsel will be appointed to speak for the child in court. The older and more mature a child is, the more relevant their wishes can be for the court in making decisions. However, the court is trying to figure out what is in the best interest of the child, and what a child may "want" may not necessarily be what is best for them.
    Answer Applies to: California
    Replied: 1/5/2011
    441 Legal Group, Inc.
    441 Legal Group, Inc. | Gareth H. Bullock
    Their opinion is taken on a case by case basis. Ages 12 and up, typically the Court may appoint a Guardian ad litem to asses the parties and the children.
    Answer Applies to: Florida
    Replied: 1/5/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    Thank you for the inquiry. Under Minnesota law, a court may consider the wishes of a child with regards to custody if the child is of suitable age and maturity to specify a preference. Even then, the child's wishes would be just one factor among many as a court decides what it believes is in the child's best interests.
    Answer Applies to: Minnesota
    Replied: 1/5/2011
    Steven D. Keist, Attorney at Law
    Steven D. Keist, Attorney at Law | Steven D. Keist
    Yes it can be, depending on the age of the child. Most times the Judge do not talk to a child, but their desires can be conveyed to the Court via a Guardian Ad Litem.
    Answer Applies to: Arizona
    Replied: 1/5/2011
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