The children’s stated preferences are always given weight by the judge, and that can come in a variety of different ways. It can come in the custody study; the evaluator would have talked to the children and will be able to state what the children’s preferences are. If there’s an attorney for the children, that attorney would be able to state a preference that they may have perceived after talking to the children and, in a rare case, a child might come to court and state their preference.
The judge is the final decision maker; the child doesn’t get to choose what custody will be or what the parenting plan will be. A child gets to choose when they’re 18, and that’s when they’re out of the jurisdiction of the court and they’re adults.
Obviously, if a 10-year-old has a preference, it’s going to be taken into account. If it’s a 16-year-old who has a preference, it’s going to be taken very strongly into account, because common sense will tell you that a 16-year-old, if he doesn’t want to be with one or the other parent, he’s not going to go, and it’s very difficult to make a 16-year-old go when he doesn’t want to go, and judges know that. The older the child is, the more likely the judge is going to lean in the favor of that child.
Laura Schantz is a family law attorney and mediator practicing in Beaverton, Oregon. To learn more about Laura Schantz and her firm, Schantz Law P.C., visit www.oregondivorceattorney.com.