By: Amber Godfrey
Ms. Godfrey has been practicing law for 13 years. Prior to joining WhitbeckBennett, she founded her own private practice in 2016 in Oklahoma City. She focuses on family law, which includes divorce, child support, custody modifications, Guardian ad Litem, adoption, and guardianships, as well as estate law which includes estate planning, probate. To learn more about Amber Godfrey, click here.
To Choose or Not to Choose: Can a Child Choose Which Parent Gets Custody in Oklahoma?
I get asked all the time, “How old do kids have to be before they get to pick where they live/who they live with?”
Unfortunately, for the unknowing questioner, that isn’t “a thing”. Children don’t just get to “choose” where they live, regardless of how old they are. Sure, when kids hit about 16 or 17 years old and have car keys, they tend to “vote with their feet”. (I mean, it’s kind of hard to stop a moving car, am I right?) Of course, parents can always take their keys away, but does that change the child’s behavior or temperament regarding where they want to rest their head that night? I dare say, it only makes them dig their heels in even deeper.
What parents/well-meaning individuals mean, but may not realize (and, incidentally, how our courts look at it) is, “How old does a child have to be before the court will consider their preference?”
Naturally, the answer to this question—or even the fact that we can pose the question at all—strongly depends on in which state the parties and child(ren) reside. In Oklahoma, for example, once the children reach the age of 12, they are permitted to state a preference. At that age, the court is required to consider the preference. Please do not confuse “required to consider” with “required to follow”. A court has to find that a child’s preference is intelligent, thoughtful, meaningful, and mature enough to be considered and followed. For example, if a child says, “I don’t want to live at dad’s on Fridays because, like clockwork, he hits me and won’t let me have dinner, but Saturdays are fine,” the court, if thoroughly convinced that these actions are occurring, may follow that child’s preference. (“Sorry, dad, Fridays are out!”) However, if the child says something like, “I want to live at mom’s on Fridays and every single weekend throughout the year because she gives me ice cream for breakfast,” the Judge may not necessarily find that to be mature and responsible and an intelligent preference enough to follow it. Did they consider it? You bet! They considered it and found it not to be appropriate and healthy for the child. Again, “consider” does not equate to “follow”.
Keep in mind, too, that if a child states their preference, it will likely come through the use of a Guardian ad Litem, if one is employed in your case, and/or it can come in through the child’s testimony in the court’s chambers. Whether parents or their attorneys may be in the Judge’s chambers during the child’s testimony is a matter of the court’s discretion.
Frequently, though, only the child, the Judge, the Guardian ad Litem (if any), and the court reporter (if a record is requested) are typically present, at least in Oklahoma. Further, Oklahoma case law states that the parents are not entitled to a copy of that in-camera (i.e., “in chambers”) transcript unless and until an appeal is done over the court’s ruling concerning custody or visitation; an appeal over child support is insufficient to break the child’s confidentiality with the court. (“…[U]nless a parent or the parents appeal the custody or visitation determination, due process does not require that either parent have access to the transcript of the in-camera interview of the children merely to satisfy their curiosity.” Ynclan v. Woodard, 2010 OK 29, ¶ 25.)
Therefore, in the future, if you believe that your child has a strong preference and is over the age of 12, and you are in the middle of an initial divorce, paternity action, or visitation/custody modification, it may be appropriate for them to speak to the Guardian ad Litem or the Judge about it; however, please do not confuse stating a preference with picking a house. It is simply not that cut and dry, and just because one parent and the child believes that that particular parent’s home is what is in the child’s best interest, the [legal] welfare of the child while still a minor rests on the shoulders of your particular Judge, and their ultimate decision will be based upon what they believe to be a mature, intelligent, preference that is not coached by one of the parents.
(Pro Tip: If your child is set to testify in such a manner, and they ask you what it is they need to tell the court, your best bet is simply to say, “Just tell the truth.”
That way, if questioned by the court if there is a message or anything in particular that either of the parents wanted the child to make sure the court knew, it’s always best if the child responds, “Yes, my mom/dad told me to just tell the truth,” rather than something that looks very apparently spoon-fed or coerced. That never scores points with your Judge.)