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Can my child talk to the Judge?

A common question when dealing with parenting time is whether a child can tell the Judge who they want to live with during a custody or divorce case. This is a complicated issue that should certainly be well thought out and well understood if this is an issue in your case, let's look at the law and some considerations.

It's important to note that every court will take the position that your children should not be involved in a court case. This means they should not be exposed to the paperwork, arguments or have either parent discuss the case with them outside of agreement between parents. Don't put your children in the position to have to make a choice between parents. A separation of parents is an adult decision with adult consequences, children have enough to worry about without worrying about upsetting one parent over the other. Kids love both their parents and telling them they must choose can put them in a harmful position.

Note that the Court will also require any final order to have a specific parenting time plan in place. Many parents I meet with initially just say "we're just going to let the kids decide where they want to be and when". This is not possible in a separation, the Order must be specific and enforceable. The reason for this ties in to the paragraph above. DON'T put your kids in charge (or tell them they're in charge) of when they see each parent! Each parent has something to offer. The last thing a child wants or needs is to feel guilty they aren't choosing to see one parent enough. Make it a schedule that everyone can follow so each parent and child knows when they will be seeing their other parent next.

Legally, during an initial custody determination, the Court may consider the "Best Interest Factors". These factors examine the elements in each parent's home to determine which home might be in the best interests of the minor child. Factor "i" of the Best Interests Factors states "Reasonable preference of the child if the Court deems the child to be of sufficient age to express a preference."

If the Court decides they want to hear from a child, they will schedule an in camera (private) interview between the child and the Judge. Most Judges will NOT share what the children say in these meetings and will only quietly consider the children's preference when making a final decision. It's important to remember what a "reasonable preference" means. If a child says "I want to live with my mom because she let's me do whatever I want and my dad makes me do chores and my homework, so I don't want to live with him." This is NOT a reasonable preference! Note that in post-Judgment cases, it is especially rare for the Court to interview a child, so this should not be depended on for any Motion filing. It is also rare for a case to go to trial at all on these issues, as most cases are resolved in required mediation.

Always discuss the best way to proceed in your case with an attorney familiar with your local courts. Attorney Allison Greenlee Korr handles cases in the counties of Kalamazoo, Calhoun, Van Buren and St. Joseph, call today for a consultation. 269-381-4471


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