The Childs Opinion Can Carry Some Weight

Video Transcribed: Your child really wants to live with you. Does that matter to the court? My name is Brian L. Jackson. I am a father’s rights attorney in Tulsa with Dads.Law. And that’s exactly the question I’m going to answer for you today.

Does your children child’s opinion as to where they want to live matter? And the answer is, it depends and that’s probably the most common answer you’ll ever hear from a lawyer ever is, it depends. Because if we’re really being honest, that’s most of the time going to be the answer. And I know how frustrating that is, but bear with me.

So what it depends on in Oklahoma under Title 43, if you’re dealing with a child of 12 years of age or older, the child is presumed to be able to form an intelligent opinion and their opinion can be considered by the court and may be given some weight. It’s not decisive. That’s a common misconception that I want to clear up right now. It’s not decisive.

A lot of people think if the child says they want to live with one parent, that’s the end of the discussion. It’s not. In fact, I would say that’s the beginning of the discussion and there are going to be other factors at play, but it does carry weight and as the child ages, it’s going to carry an increasing amount of weight.

A Court’s unlikely to make a 16 or 17-year-old live with a parent they really don’t want to live with unless you’re talking about some pretty extreme exigent circumstances where the child’s opinion really should be disregarded.

But all things being equal. It’s very likely, although not a given, but very likely, that with a child of that age if they say they don’t want to live with mom and they wouldn’t live with dad, they may get their wish. So understand that.

If the child is less than 12 years of age then the presumption works the other direction. They probably are presumed not to have an intelligent opinion and most judges are not going to consider their opinion if they’re less than 12 years of age at all.

So be aware of that and understand just because you’re 7, 8, 9 years old say they can’t stand their mother and don’t want to live there doesn’t mean that that is going to make the court give them their way.

Now, if there are underlying reasons, the child doesn’t want to go to mom’s house, like for example, abuse, neglect, Uncle Feely, then that is still relevant and it’s not to say the child isn’t wearable and can’t testify.

What it means is that if all they’ve got is their opinion, that they’d rather be with dad, at that age if they’re under 12, it’s probably not going to carry a lot of weight.

Now I can tell you that, although it is persuasive in some situations, just because the child has hit the age of 12 is not the end of the discussion. If the child’s reasoning for why they want to move in with the other parent is because the other parent’s all loosey-goosey and lets them do whatever the hell they want, for example, the court’s probably not going to entertain that.

I’ve won those cases before where I have had a child saying they don’t want to live with my client anymore. And they got ordered to anyway because again, it depends on the circumstances. If the child’s reason for wanting to move is not a good one. They’re not going to get their way.

If the child says they want to move in with a parent who has a history, that’s problematic, like, for example, substance abuse, domestic violence, things like that, criminal behavior, the child probably won’t get their way. So it is persuasive, but not the end of the story.

Now, something to be aware of though, is that can be grounds for the Gibbons Motion. In other words, the Motion to Modify, as a material change in circumstance. That is a reason if you’re talking about a 12 plus child, that you could file one of these motions, although it doesn’t guarantee you the win and that actually can be a harder case to make than you think.

Because if that’s the only reason that the court squarely going to dig hard into why, and if it looks like it’s because the other parent is more easy-going with the kid, they’re probably not going to let the kid go there. So that is a reason to file it. But I’m going to tell you right now, it’s not the easy one you think it is.

So that’s the rule on that? Yes, their opinion can carry some weight. It’s not decisive. And if you have questions about that, I would suggest you go to dads.law where dads are not disposable, and we’ll be glad to help you out, guys