The Preference Case: In Oklahoma Children Age Twelve and Older Can State a Preference for Custody and Visitation - How to Set Up a Good Case
If I had to narrow it down, summer is far and away the most prolific time for preference cases. True, they can and do happen at any time, but summer is where I see the most action. At the start of each summer I get calls that the kids don’t want to go visit their dad. At the end of the summer I get calls that the kids don’t want to go home to mom. What exacerbates this problem is that the age kids can state this preference is twelve!
In Oklahoma, kids twelve and older may state a preference concerning custody and visitation. The court is not bound by the preference, but it is one of many factors the court will consider in awarding custody and visitation. My experience is that unless there is a really good reason not to follow the preference, most often the court will give the preference a significant amount of weight. Under the right circumstances, you can have a successful case based on the preference of a child. Under the wrong circumstances, you have a train wreck waiting to happen.
Kids this age want to please their parents. They want their parent’s approval. They want their parents to be proud of them. So, what happens? When the kids are with mom they tell mom what she wants to hear. When the kids are with dad, they tell dad what he wants to hear.
So, how am I supposed to know if I have a good case? Always ask yourself this:
Does our child only say he/she wants to live with me when at my house?
Does our child tell not only you, but the other parent, their teachers, their friends, and basically everyone else that will listen that they want to live with you?
Typical bad example:
Jimmie wants to live with me but is afraid to tell his mom. If the judge will just talk to little Jimmie I know he will say he wants to live with me.
This is most likely a kid that does not want to be in the middle and is telling dad what he thinks dad wants to hear and at the same time is telling mom what he thinks mom wants to hear. Is it the kid’s fault? No, they are just being a kid caught in the middle = train wreck.
Typical good example:
Jimmie told his mom, his best friend, his friend’s parents, his teachers, and is posting on social media that he wants to live with me.
This is most likely a kid that probably has decided he wants a change and wants to live with you and will tell the court the same thing = generally good case.
With this said, there are still going to be those cases where a child will initially say they want a change but then at some point in the future decide they want to stay where they are. When you can clearly see that this has happened, don’t force the child to speak to the judge and put them through that ordeal for no reason! You might be angry that the child has changed his mind, but do not take this anger out on the child. If the preference is simply no longer there, know when to tap out.
If I don’t ask how will I know they want to live with me? They will approach you. They will approach the other parent. They will approach anyone that will listen. They will make it known. Don’t put your kids in the middle. Don’t ask them where they want to live because they are probably going to tell you exactly what they think you want to hear.
If you have a good case, bring it! If you don’t, leave it. Moreover, know how to tell if you have a good case and when you don’t and let this be your guide.
Pete D. Louden
Attorney at Law