Ask a Lawyer – Blaine Clooten of Clooten Law, LLC – November 2022

Question: I’ve read some of your other articles and thought you might be able to help. My ex and I separated in 2019. Before that, we lived together for 12 years and had a child together. We were never married. We are now going through a custody case. We have a very smart 10-year-old daughter who wants to tell the judge who she wants to live with. At what age can a child decide which parent she wants to live with?

Answer: Thank you for reading! I am happy to try to point you in the right direction. I hope this answer helps you out.

The direct answer to your question is at age 18. At age 18, the child can choose who she wants to live with.

There are different ways that the child’s preference or interest can be heard by the court, but ultimately, this is an issue for the parents to decide. If the parents cannot decide then the court will decide.

So, how is your child’s voice going to be heard by the court if they are not 18?

There are circumstances where the judge will hear testimony from a child during a custody case. Frequently in this county, the judge will take the child into chambers, which is a less formal setting. The child is then questioned, and their answers are recorded for the official court record.

In this scenario, if the parents are represented by counsel, only counsel, the judge, and the witness (child) will be in chambers, not the parents. This allows the child to feel freedom to testify more fully. Remember however that the testimony is on the record and either parent has access to these recordings in the future.

For this reason, attorneys often discourage their clients from putting a child on the stand unless it is essential to the case. Putting a child on the stand to state a preference for one parent over the either can drive a permanent wedge between a parent and take an extreme psychological toll on the child. The judge is not bound to follow anything the child has said and instead will only decide custody and parenting time based upon what is in the best interests of the child.

There are two other primary mechanisms that allow a child’s voice to be heard in a custody proceeding. One is for the child to request counsel. Counsel would be separate from either of the parent’s counsel and represent the interests of the child. The second is for the court to order a custody evaluation.

A custody evaluation is a report drafted by an expert after interviewing the parties, the children and any collateral contacts (family members, friends and similar people). The custody evaluation will make recommendations regarding custody of the children and a parenting time plan.

Custody evaluators are neutral third-party experts, usually licensed and trained in the field of psychology. The court must first order the evaluation and upon entry of the order, the parties must participate in the evaluation process.

The custody evaluator typically devotes substantial time and effort to interviewing the children to better understand the totality of the situation and make recommendations that are in the best interests of the child(ren).

Through this custody evaluator’s report, the child’s wishes should be expressed in either the witness statement portion, or in the evaluator’s report. Ultimately the court has the discretion to either follow the recommendations of the evaluator or make a different ruling that the judge feels is in the best interests of the child(ren).

In my practice it common for children to express to their parents a desire to testify and for their voices to be heard. They want to tell the court who they should be living with. Oregon is somewhat unique in the respect that the child’s voices can be heard, but that their wishes do not need to be followed or even considered by the judge.

A similar question often arises after a custody case has been decided and the child does not want to do visitation with one parent. The parent will ask, “At what age can a child refuse to go to parenting time.” Again, the answer is at age 18. What do I do when the child refuses to go to parenting time? This is a more fact specific answer and will depend on the situation. For the answer to this question, I recommend you talk to a family law attorney.