Divorces involve many kinds of choices that need to be made quickly. In general, as part of a divorce, one parent will move to another dwelling to begin a new life for themselves. The other person may move as well or they may decide to continue to stay in the existing family home. This decision can be extremely complicated if there are children involved in the divorce. Many parents wonder about their child’s ability to make their wishes known about where they would ultimately like to live. This is particularly true if the parent seeking any form of custody is no longer living in the home where the child grew up while the other parent remains in that home. A parent may want to keep primary or shared custody with the other parent but have concerns about the child’s overall feelings. Judges take into consideration many different factors when thinking about custody arrangements and deciding what is in the true best interests of all children involved. One factor that has been of increasing importance in recent years is that the child’s personal wishes.
Judges Must Listen
Children are not adults in any legal sense. They are not capable of making decisions about their lives in many ways. However, states have recognized that children have vested interests that need to be protected during a divorce. Under law, judges in states other than Massachusetts are either legally required to listen to the child or may be allowed to do so in the process of making custody any decisions. Keep in mind that there may be specific precedents for doing so or there may be a body of case law that the judge can turn to help guide their decision. In most states is no set age at which the judge must pay attention to a child’s wishes as regards their living and custody arrangements. For example, Georgia sets this age at fourteen but this is not a hard and fast rule. It’s largely incumbent on the judge to consider what the child has to say about their lives and living conditions. A judge is perfectly free to bring a ten year old in the court and hear them out. The judge can also ask make other kinds of determinations such as the testimony of all the children in the family. If all other siblings wish to stay together but one does not, this can also be taken into consideration when deciding where each child should ultimately live.
A child’s personal wishes are given a great deal of weight during any custody hearings. But they are only one of many factors that will be brought to bear. The child may prefer one parent over another but that parent may have issues that may custody inadvisable. For example, the parent may simply not have the resources to support the child financially even if there’s a financial settlement by the other parent. However, if the couple is largely evenly matched, the judge may place great weight on the child’s testimony. They may ask the child to speak with other officials as well. For example, a judge may ask a child psychologist to evaluate the situation and determine how the child is reacting to the divorce. The child psychologist can help the judge make an important determination by offering a report in writing about the child’s present mental state.
Judges also recognize that, as a child gets older, it can be harder to ignore that child’s wishes. A teen who does not want to live with one parent has the financial and emotional resources to get to the other parent’s home on their own. The same is not true of younger children who may not yet know how they feel or understand the consequences of the changes that are coming to their lives. Judges have many years of experience with this issue. They may know that it is possible for children to be coached before showing up in court. Children who appear highly rehearsed rather than natural may give testimony that the court does not find credible. Keep in mind that, if there is a court session as part of the divorce case, the child is probably not going to be called upon to give formal testimony in a full court of law. Instead, they are likely to be heard in private by the judge in a quiet space free from any kind of other distractions
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