In a divorce, who should decide the child custody question? Parents of tweens and young teens, I am curious to know what types of decisions you think they are capable of handling. Better yet, don’t base your response on your above-average child, please consider the average 14-year-old population. At this age, I’ll bet we would find a wide range of scores if we measured maturity (intellectual, physical, spiritual & emotional), naivete, or cognitive skills. Gender might also impact the results.
What about your family? What level of family decision-making would you turn over to your 14-year-old? We are not talking about whether a child should be allowed to express their opinion or even be asked their thoughts on a matter. I’m asking if the child should be given the ability to have the final say. There is a BIG difference.
In Georgia, our legislature long-ago (early 1960s) determined that, with minor exceptions, when a family separates, a 14-year-old has the right to choose which parent they will live with. Fifty years later, the legal community debates whether that is a good idea.
Every family is different. And every child is different. Take a moment to think this through before you give your child this power (or burden) to choose.
Think about the usual scenario. Two adults, parents who love their children and want only the best for them, are separating. Despite their powerful love for their children, they are absolutely unable to work out some agreement between them for the benefit of their children. They end up in the courtroom grappling over custody, where they abdicate their decision-making authority to the Judge, in essence saying, “Judge -- you who have never met us before and know nothing about us, our children, or our family other than the vitriolic testimony you have just heard in the past two hours or two days about what an awful parent each of us has been and will continue to be – you decide this for us.”
Georgia’s legislature looked at that scenario and decided that rather than leaving the tough decision to the judge, we should give the kids the right to weigh in and decide for themselves.
Most would agree that children know what they want and aren’t shy about expressing their demands; but are they capable of determining their best interest?
On the one hand. Perhaps Georgia’s law simply reflects customary family behaviors. Maybe most families, when faced with this decision, call a family meeting, ask the kids what they want to do, and abide by that decision. And some studies might indicate that during a family breakup it is best for the children to have control over the parenting choice. Or maybe the child’s voice is the only one that matters, especially when the parents are “divorce crazy” [a temporary insanity that can occur in the midst of a divorce].
On the other hand. Wouldn’t teens always choose to live where they have the least supervision or discipline, or the best chance of getting their way on a daily basis? Might a savvy teen use this power to manipulate their embattled parents? To throw some fuel on the raging divorce fire? “If you don’t [insert outrageous demand here], then I will just go live with [other parent].” Or could an angry parent manipulate their child to gain leverage in their divorce war? “If you come to live with me, I will [insert false promise here].” Those are the extreme, but real, examples of manipulation; often it is more subtle.
Consider. Every family is different. And every child is different. Take a moment to think this through before you give your child this power (or burden) to choose. Ask yourself:
Is it absolutely necessary to let your child choose? Is it possible (or even preferable) to achieve your litigation goals without involving your child at this level?
What will be the impact on your child if asked to choose? If there is no agreement from your partner, will you want a guardian ad litem appointed to investigate your child’s choice, or for your child to go to court to talk to the judge? Guardians and Judges are not new to this situation and kids almost always spill their guts when given the opportunity. If you’ve been snowing yourself, or if your child has been snowing you, it will all come out eventually.
Does your child really want to make this decision? You should know without asking. If you don’t, then don’t ask your child. If you honestly believe that your child really wants to make this decision, then you must ask yourself:
Is your child being manipulated in any way? By your or your partner? Blatantly or ever-so-gently? Do you let your child see your anger or tears? Hear your fears?
Is your child manipulating you? You know the answer to this. Tell yourself the truth and listen to it.
Can you live with your child’s choice? This could be a trick question. Are you answering yes only because you believe that your child will choose you and stick with it? The real question is: Can you live with your child’s choice if s/he chooses you and then changes his/her mind next week? It happens; a lot.
Can your partner live with your child’s choice? There may be no doubt in your mind that your child will choose you and stick to it. But you must consider whether that action will cause your child any problems in the future. How will it impact the future relationship between your child and your partner? Between you and your partner?
What will be the impact on your other children? Will siblings be separated? Will your other children want to go where their sibling goes? Some kids don’t get along with each other at all and a separation might be an improvement for both. Other kids are more closely bonded and might be devastated if one is left behind.
How much power are you willing to give up to your child? Once you give this power away, could it be expanded and end up making make your life miserable? Will you constantly be worrying that your child will be manipulated by your partner or that your child, once empowered, will lord it over you?
Finally, do the potential negatives outweigh the positives? Will allowing your child to choose expand the litigation, costing you more time and money? Or cause significant damage to future family relationships?
If your partner has allowed your child choose, ask yourself the same questions. You still have the choice. Take a moment to carefully consider whether you should ask your child to change his/her mind and choose you.
Authored by Cynthia L. Patton, Esq. This blog post is for informational purposes only and does not constitute legal advice. You should consult an attorney for specific legal advice.
