The decision of divorce or separation often comes with a lot of secondary decisions, including what happens to the children. A small child isn’t able to understand what’s occurring, nor that they have an option of where to live. Yet, what happens when a child is older and does understand? Do children get a choice when it comes to custody? The answer is not as straightforward as it may seem.
Keep in mind that every case is very different. When you meet with our New Orleans child custody attorney, we will offer specific insight and guidance based on your case. We encourage you to set up a consultation with The Law Office of James A. Graham now to learn how we can help you.
A child’s statement can be a factor, but is not the deciding one
Divorce and separation are incredibly challenging for children. The court often becomes the “bad guy” in the process because it makes decisions based on the perceived best interest of the child. That may not always be what the child wants.
If a child has a preference of where to live after such a separation, the court is likely to hear that information. This often happens in a private meeting with the judge with one, both, or none of the parents present. The child is more than welcome to share their thoughts, opinions, and concerns, and often it is a good idea for them to do this.
In chambers, meetings like this are called an interview, and are a good way for a child to open up to the court about what they want. Sometimes, the judge will agree with the child, and if the parents also agree, then the process is often very straightforward. However, that does not always happen.
What if the judge does not agree?
There are some situations where a judge may not feel that the child’s opinion is valid. That can be very hard to hear, but the court’s primary goal is to ensure that the child’s best interests are always paramount. Sometimes, that means that the judge may determine that a child should have different living arrangements from what they desire.
The judge ultimately has the ability to make these decisions, and that often means neither the parent nor the child can override what the judge says without additional legal action. It is possible to appeal these decisions, especially if there is additional information that needs to be brought forward in the matter.
What does a judge consider when making a custody decision?
A judge will use a wide range of details to make decisions about a child’s custody placement. Our New Orleans child custody attorneys can give you more insight into what you can expect in your situation. Some of the factors that will play a role in this decision include:
- The moral temperament of the parents, including how they conduct themselves, talk about each other, and whether they are honest or manipulative
- The social grounding of the child, with respect to the child’s availability to friendships, supportive family members, religious groups, school programs and clubs, and community involvement opportunities
- The parent’s health, including if the child would be impacted by that health, such as if a parent is a smoker or is struggling with substance use disorder
- The stability of the home, including whether the home is likely to be a stable place of residence for the child or if they are likely to have to move frequently
- The length of their current living arrangements, such as how long they have lived in their home, as that would have created stability for a child in some cases
- The emotional bond between the child and the parent, especially in factors related to stressors, anxiety, and any medical needs the child may have
- The parent’s ability to meet the material needs of the child, including not just paying for food and shelter but also providing access to education, ensuring good character development, encouraging spiritual guidance, and supporting growth
This information, along with the child’s preference, will all be factors in the judge’s decision. Typically, a judge will listen to parents and children, and when old enough, a child’s decision is likely to weigh heavily on the decision made. However, that becomes less likely to occur when a child is younger, or the judge believes a child was coerced in any way to choose one parent over the other.
Is a mental health professional necessary for these decisions?
There are some situations where the court will use that interview to gain insight, but they may not feel as though they are getting as much information as they need. One of the legal steps the judge can take under La. Rev. Stat. Ann. § 9:331 is to gather information from a mental health professional. They may request that a professional be assigned to gather information from the child and evaluate the child’s mental health needs. This information can then be used by the judge to make decisions about where the child should live.
While a mental health evaluation like this can seem like an overwhelming, even over-stepping process, it can actually be a good way for the judge to learn or reaffirm any concerns with the child and ensure that his or her wishes are, in fact, ideal for their future.
Our attorneys know this is a huge decision, and can be very stressful one for most parents. Yet, we can help you to show the court that you are the best choice for your child’s needs. At the Law Office of James A. Graham, we listen to you, provide you with transparent, accurate information about your legal options, and then fight to support you through the process. Do children get a choice when it comes to custody? That is not always the ultimate deciding factor, but we can help a judge to see that it may be ideal. Call our office or submit our contact form today to learn how we can support you.