FAQ's - What About My Son's Preference of Who He Wants to Live With?

Q. My son visited with me all summer long and now he doesn't want to return to his Mother's. Is it a good idea to try to change custody?

A. A child's preference concerning where he or she wishes to reside can be important in custody contests, but is far from the final word except possibly with children 16 years of age and above. These older children can be quite difficult to control if their preference is strong enough, and judges and parents are more likely to give in to an older child's insistence about where they want to live assuming that there is no overriding detriment to living moving to the preferred parent's home. But a parent who panders to a child who threatens to act out if they don't get their way on this subject is doing real violence to their child's development.

Many normal, balanced, children may have a preference for one parent's home over the other's at any give stage of the child's life. It can flip flop over as the child matures. Sometimes the child is identifying with their same gender parent; other times the child wants to learn what living with the other parent is like. With stable parents, it is a very good thing. Ultimately what is best for children is that the parents do not fight about it, or treat the kids as though they were possessions or meal tickets.

Remember, as parents both are modeling coping and adjustment skills to their children. It is remarkable how many people completely lose sight of the fact that your children will likely act as you did as conflicts arise in their lives. What legacy would you leave them with, if you considered the matter mindfully? So much depends on the attitude of the other parent, and how you approach that parent and what sorts of responses you invite or trigger.
Consider for a moment the pressure that is placed on children when parents ask them to decide who they want to live with, or by implication who they 'love more' or 'prefer.' It is dangerous territory, and not to be tread superficially. Parents who ask the question of their children are probably already asleep at the wheel.

I recently was acting as a temporary judge in Indio (judge pro tem) and a case came before me that was brought by a father, who had a local lawyer who should have known better, seeking to change custody at the end of the summer. Included in the moving papers was a declaration the lawyer had supposedly obtained from a 9 year boy (it bore the child's signature), urging that his mother was a bum and that he did not want to go back, etc. I was aghast, because this was so obviously inappropriate and the pressure that was likely brought to bear on this child, whether covert or overt - and having a 9 year sign a declaration is pretty overt - had to be damaging no matter what the justification. Parents are not the only people who just don't get it. Lawyers who dabble in family law matters frequently lack discernment. Any judge in that situation is immediately going to be suspicious of the parent who puts the declaration 'out there' so it is also a good way of expressing to the court that the parent seeking the change lacks the necessary insight.

In addition, parents often fail to realize they have unspoken agendas which they communicate to children in a variety of nonverbal, or verbally deceptive, ways that can be highly destructive of the child's view of both parents, one gender or the other, and even of themselves.

Please note: This article was written prior to the January 1, 2012 enactment of Family Code section 3042, which requires courts consider children's preferences once they reach the age of 14.


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