Can a child decide who he wants to live with?
Updated: May 29, 2020
In an Oklahoma custody case, can a child decide who he wants to live with?
Oklahoma law says that, if the child is old enough to form an intelligent preference, the court “shall consider” the child’s preference in deciding custody or visitation. The statute also says that if a child is twelve or older, there is a “rebuttable presumption” the child is old enough to form an intelligent preference.
See the full text of this statute, here.
It’s important to note what this statute says, and what it doesn’t say. It says that a court shall consider the preference of the child if the child is of a sufficient age to form an intelligent preference. However, this does not say that the court must follow the child’s preference. As long as the child is under eighteen, the court does not have to follow the child’s preference. The statute says that the court shall “take all factors into consideration in awarding custody or limits of or period of visitation.” The Oklahoma Supreme Court has said that the child’s preference “should never be the only basis for determining custody.”
Also, the law does not fix any age when a child is old enough to express a preference. Even if a child is under twelve, the court may take the child’s preference into consideration. If a child is over twelve, there is a “rebuttable presumption” that the child is old enough to express a preference, but a court can still decide that the child is not old enough.
Taking a child’s preference into account, in custody cases, is nothing new. In 1910, the Oklahoma legislature enacted a law allowing a court to consider a child’s preference in a custody case.
How does the court determine what the child’s preference is?
According to the statute, the court “may” conduct a private interview with the child in chambers. The court may conduct this interview with or without the parents, or their attorneys present. However, if a guardian ad litem had been appointed in the case, the guardian ad litem has the right to be present. (Click here to see what a “guardian ad litem” is.)
In 2010, in Ynclan v. Woodward, the Oklahoma Supreme Court ruled that, when a court takes a child’s preference into consideration:
a child [should not] be directly asked where the child would rather live because specifically asking preference provides an opportunity for parental manipulation or intimidation of the child as well as an opportunity for the child to manipulate the parents. It also gives the child the impression that their preference is "the" deciding factor for custody. Rather, the trial court should conduct such an interview so as to discern the child's preference, while at the same time, being sensitive to how the child is coping with the divorce, the pressures put on the child by the divorce and stating a preference, as well as to ascertain the motive of the child in stating a preference.
In Ynclan, the court also adopted the following guidelines for courts to follow, in conducting the interview:
1) If the trial court or the parties consider the possibility of an in camera interview of the children, then the trial court, pursuant to 43 O.S. 2001 §113, must make and state on the record its preliminary determinations concerning whether the child's best interest is served by conducting such an in camera interview and whether the child is of a sufficient age to form an intelligent preference;
2) If the parents consent to the interview being in chambers, or otherwise waive their own presence, the judge may proceed with an in camera interview.
3) If one or both parents object to being excluded, the trial court must consider whether the parents want counsel present. This consideration should include whether to allow counsel to be present, allow counsel to question the child, or allow counsel to submit questions to be asked. Whether the trial court allows the counsel to participate in the questioning or submit questions is within the trial court's discretion. If no objection is made regarding this issue, the parties waive objection to the issue on appeal. If the judge proceeds with an in camera interview without counsel present, pursuant to 43 O.S. 2001 §113, the reason for counsel's exclusion must be stated on the record.
4) The next issue to be considered on the record is whether either or both parents request that a court reporter be present. If a request for a court reporter is made, the court reporter must be present and the interview shall be recorded -- otherwise the parties waive objection to the issue on appeal.
Ynclan also held that, if a court privately interviews a child in chambers, and a court reporter makes a transcript, the parents do not have a right to see the transcript, unless the case is appealed.