When two parents divorce or end their romantic relationship, one of their biggest and most immediate worries is who will get custody of their children. If they aren’t able to agree themselves, they’ll have to go to court and ask a judge to make an “initial custody decision.” This means that the court decides, for the first time, where a child will live and how custody and visitation will be divided between the parents.
One of the key questions that lingers in the back of every parent’s mind is what role a child’s personal preference plays in the judge’s custody decision. Does it matter where the child wants to live, which parent the child wants to have custody, or how much time the child wants to spend with each parent?
There are two kinds of custody in Oklahoma: physical and legal. Legal custody refers to a parent’s right to help make important decisions on behalf of the child, including medical, educational, cultural, and religious matters. Physical custody, on the other hand, pertains to where the child will live, which parent will provide what kind of care for the child, and how much time each parent will spend with the child.
Legal and physical custody may be joint or sole. If custody is joint, the parents will share time with the child and make decisions together. If custody is sole, only one parent will make the decisions and will spend most, or sometimes all, of the time with the child. There is no legal preference in Oklahoma for or against joint legal custody, joint physical custody, or sole custody.
To decide custody matters, Oklahoma’s laws require the court to consider a number of factors relating to a child’s best interests, as follows:
For more information about custody decisions, the Oklahoma State Courts Network provides links to county courthouses with forms and additional research. You can also browse the Oklahoma statutes to read what the laws say.
Oklahoma family law judges will not necessarily consider a child’s preference in every case. There are certain criteria that have to be met first.
There are two separate scenarios in which the court will consider a child’s custodial preferences.
First, if the court decides it’s in the child’s best interests to express a preference, then the child will be allowed to explain the preference and even testify about it. This gives a judge broad authority to decide when a child’s opinion is relevant.
Second, if the court decides that the child is old enough to form an intelligent preference, then the child will be allowed to explain and testify. Oklahoma’s law specifies that children who are 12 years old and above are able to form an intelligent preference and can testify.
The general rule is that if children want to express a custodial preference to a judge, the court must believe the child is old enough, intelligent enough, and possesses the judgment, maturity, and discretion to express an enlightened opinion about the child’s welfare and future.
If the child can only express a whim, such as “Mom lets me stay up later so I want to live with her” or “Dad won’t let me play video games on weeknights so I don’t want to live with him,” then the court will not admit evidence about the child’s preference because the child’s opinion is immature and isn’t based on reason or facts. But if the child says, “I want to live with Dad because I feel safe in his home and he helps me with my homework every night,” or “I’d rather live with Mom because she encourages me with my schoolwork and extracurricular activities, but Dad isn’t involved in them at all,” then those would be reasonable preferences and the judge would consider them.
If a judge decides that a child has the age, maturity, and discretion to express a custodial preference, the next question is how the child’s opinion can be conveyed to the court.
The judge has several options about how to proceed. The court may, but does not have, to appoint a guardian ad litem for the child. A guardian ad litem is a person who talks to the child and represents the child’s best interests in court.
Next, the judge can speak privately with the child, in the judge’s chambers. The discussion is private so that the child feels more comfortable speaking about sensitive family matters. If a guardian ad litem has been appointed, the guardian must attend this hearing. Other than the judge, the guardian, and the child, the only other person who may be present is the official court reporter, who will make a record of the hearing. The court reporter’s transcript of the private hearing may only be viewed by the parents if they appeal the judge’s decision.
Because the parents and their attorneys are not allowed to attend the private hearing, they can ask the judge to inquire about certain topics. However, the judge does not have to acquiesce to this request. In fact, it’s unlikely that the judge will directly ask the child about custodial preferences, because the child may be under duress from one or both parents.
If you find yourself in a situation where you and the other parent can’t agree about who should have custody, the best decision is to contact an experienced Oklahoma family law attorney to represent your interests. Contested custody cases are very difficult to navigate as a self-represented person.