Family Law

Can a child choose which parent to live with in a divorce?

By Dan Nunley

In an Oklahoma contested divorce in which the husband and wife are parents to a minor child, the judge will decide which parent will be the primary custodial parent based on the best interest of the child standard.

I am often contacted by parents who ask if the child custody arrangement can be changed if the minor child expresses a desire to change their residence and go to live with the current non-custodial parent.

Oklahoma statute states that a child twelve years of age or older is of sufficient age to form an intelligent preference, and that the court shall consider the child’s preference in determining custody. However, the legal standard in Oklahoma for a change in custody is that there must be a material permanent change in circumstances from the original custody order. Furthermore, the proposed change must be found to be in the best interests of the child. This begs the question ?Is the child?s preference enough to warrant a change in custody without showing additional changed circumstances??

The Oklahoma Court of Appeals answered this question in the affirmative in April, 2008 in the case of Hogue v. Hogue. In Hogue, the mother was awarded primary physical custody of the couple’s minor son in a 1997 divorce decree. Thereafter, the father filed a motion to modify custody based on the minor child’s stated desire to go live with his father. The judge visited with the 15-year-old boy in chambers regarding the child’s preference to live with his father. The judge then ordered a change in primary physical custody to the father and the mother appealed that decision.

The Hogue court, quoting the Oklahoma Supreme Court’s decision in Nelson v. Nelson, said that ?under both case law and statutory law, a well-founded custody preference by a child will support a change of custody without proof of any other change of circumstance.”

The Court went on to say ?as long as the child explains good reasons for the preference, the preference and supporting reasons will justify a change of custody? and concluded that the modification was justified based on the child?s preference without more.

Therefore, the answer is yes, a minor child who is twelve years of age or older and who can justify with good supporting reasons his or her desire to change the primary custodial parent, can effectively choose which parent to live with in a divorce.

Full post as published by Oklahoma Family Law Blog on December 15, 2008 (boomark / email).