Child Preference for Modification of Custody and Visitation
I. STATUTE 43 OS § 113
A. In any action or proceeding in which a court must determine custody or limits to or periods of visitation, the child may express a preference as to which of the parents the child wishes to have custody or limits to or periods of visitation.
B. The court shall first determine whether the best interest of the child will be served by allowing the child to express a preference as to which parent should have custody or limits to or periods of visitation with either parent. If the court so finds, then the child may express such preference or give other testimony.
C. There shall be a rebuttable presumption that a child who is twelve (12) years of age or older is of a sufficient age to form an intelligent preference.
D. If the child is of a sufficient age to form an intelligent preference, the court shall consider the expression of preference or other testimony of the child in determining custody or limits to or periods of visitation. Interviewing the child does not diminish the discretion of the court in determining the best interest of the child. The court shall not be bound by the child’s choice or wishes and shall take all factors into consideration in awarding custody or limits of or period of visitation.
E. If the child is allowed to express a preference or give testimony, the court may conduct a private interview with the child in chambers without the parents, attorneys or other parties present. However, if the court has appointed a guardian ad litem for the child, the guardian ad litem shall be present with the child in chambers. The parents, attorneys or other parties may provide the court with questions or topics for the court to consider in its interview of the child; however, the court shall not be bound to ask any question presented or explore any topic requested by a parent, attorney or other party.
F. At the request of either party, a record shall be made of any child interview conducted in chambers. If the proceeding is transcribed, the parties shall be entitled to access to the transcript only if a parent or the parents appeal the custody or visitation determination.
II. ORIGINAL CUSTODY DETERMINATION
1. Sets out rules regarding in camera review of child
2. ¶13 Obviously, the purpose of such a hearing is not to lessen the ordeal for the parents, but, rather, to lessen the ordeal for the child. Nor is it intended to make a secret of the basis for the court’s findings.18 The preference of the child is only one of many factors to be considered when determining the child’s best interest concerning custody.19 It should never be the only basis for determining custody.20 Nor should a child be directly asked where the child would rather live because specifically asking preference provides an opportunity for parental manipulation or intimidation of the child as well as an opportunity for the child to manipulate the parents.21 It also gives the child the impression that their preference is “the” deciding factor for custody. Rather, the trial court should conduct such an interview so as to discern the child’s preference, while at the same time, being sensitive to how the child is coping with the divorce, the pressures put on the child by the divorce and stating a preference, as well as to ascertain the motive of the child in stating a preference.22 When the trial court determines the child’s best interest will be served by considering the child’s preference, whether to hold such an interview is generally within the trial court’s discretion.23
III. CUSTODY FROM ONE PARENT TO THE OTHER
1. ¶6 The current statutory authority governing a child’s expression of a custodial preference is codified as 43 O.S. &sec; 113 (1991). The current statute does allow the trial court to determine “whether the best interest of the child will be served by the child’s expression of preference.” This is a good rule in cases involving an initial custody decision. However, where a change of custody is sought because a child has asked for the change, the child’s interests are best served by “serious consideration” of the preference and the reasons for it, Hudspeth, 271 P.2d at 373, and “in-depth judicial assessment” of the current custodial arrangement. Wells, 648 P.2d at 1224. It may well turn out that the change of custody is not in the child’s best interests, but such a determination cannot be made fairly and reasonably without hearing from the child.
2. It is the child’s preference and the supporting reasons justifying that preference that may, in some circumstances, permit the change of custody without proof of any other circumstance beyond the preference. Nazworth, 931 P.2d at 88. Nazworth makes clear that a child’s preference which is explained and supported by “good reasons” can justify a change of custody.
1. ¶ 4 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. Accordingly, we hold the trial court did not err in changing custody in the instant case, even though Father “failed to demonstrate a material, substantial and permanent change in circumstance,” other than the preference of the children.
2. ¶ 6 “One who challenges the trial court’s determination on custody, based on the best interests of the children, has the burden of demonstrating an abuse of discretion, and must put forth the evidence relied upon to establish the trial court’s error and must affirmatively show how this evidence shows the trial court’s decision to have been contrary to the children’s best interests.” Id. at ¶ 11, 948 P.2d at 1243 (citations omitted). “Absent such a showing, the trial court’s determinations are presumptively correct.” Id.
1. ¶8 Here, when the earlier motion to modify visitation was filed on July 31, 2002, RJH was only eleven years old. He had turned twelve by the time of the hearing on that motion to deny visitation. RJH expressed a desire to spend more time with Father at the visitation hearing, but he did not express a preference to change custody at that time. The court denied Father’s motion to increase visitation, but the reasons for the court’s decision are not in the record.2 When RJH testified at the December 2005 hearing he was 15 years old. He was intelligent and articulate, and expressed a well-founded custody preference to live with Father. The court properly gave careful consideration to the custody request. Nazworth, ¶6, 931 P.2d at 88 (where change of custody is requested because child has asked for the change, child’s interests are best served by serious consideration of child’s preference).
2. ¶9 We find the court did not abuse its discretion in modifying custody, even though the court did not find Father had shown a material change other than RJH’s preference to support the modification of custody. We have carefully reviewed the record, and find RJH’s preference was based on valid reasons that justified the change in custody.
1. ¶ 16 The trial court’s order acknowledged there was no substantial, material or permanent change of circumstance to warrant a change of custody and based the modification exclusively on C.B.’s testimony. C.B.’s testimony provided the court with two things, an expression of his preference to live with his Father and his current dislike for his older sister. The trial court’s order and its specific citation to Nelson indicate the modification was singularly premised on C.B.’s preference to live with his Father. Nelson v. Nelson, 2004 OK CIV APP 6, 83 P.3d 911. Mother asserts on appeal that C.B.’s preference, in itself, is not sufficient to modify custody. Under these circumstances, we agree.
2. ¶ 21 The judge asked C.B. twice during the interview if there was anything about his living situation, which at the time was with his Mother, that C.B. would like the court to change or help him with. Each time, C.B. said no. When asked if he liked everything the way it was, namely with his Mother, C.B. said yes. During the course of the interview, C.B. also said he wanted to live with his father. Each of these inconsistent expressions seemed genuine enough, but were by C.B.’s own admissions not the product of a long, thought-provoking analysis. When asked by the judge how long he had thought about his idea to live with Father, C.B. indicated he had come up with the idea that very day.
¶ 22 The trial court must carefully examine the child’s articulated preference to determine if, in fact, it was an intelligent preference; was it well reasoned and considered or was it whimsical and impulsive. This is especially true when a child is young, like C.B., who had just turned ten that very morning. Here, it was clear from C.B.’s interview that he did not presently like his sister very much and that he had recently physically suffered at her hand, but there was no evidence regarding how “permanent, substantial and material” was the deterioration in the sibling relationship. There was no evidence of what caused the fights and as a result, no evidence of how lingering, systemic or permanent the conflict might be or what might have been done to alleviate it. C.B. did not indicate that he felt unsafe at his Mother’s house because of his sister’s presence.
¶ 23 It does not appear from the record below that C.B.’s expressed preference was sufficiently articulated to form an “intelligent preference.” His stated preference to live with his father was equivocal, as he had also indicated he had no desire to change the status quo with his mother, and any substantive evidence regarding the conflict with C.B.’s sister was lacking to such a degree that determining whether this circumstance was material, permanent and substantial was not possible with the record provided. In this case, the child’s stated preference, such as it was, did not provide a sufficient basis upon which to modify custody and the trial court erred in doing so based on the evidence available.
IV. JOINT CUSTODY TERMINATION TO SOLE CUSTODY
1. Case deals more with termination of Joint Custody than child preference
2. Children wanted joint custody 50/50 time; Court terminated joint custody and gave sole custody to mother with supervised visitation to father
3. ¶13 However, the preference of the child is just that — a preference.
4. ¶19 It is at this stage in the proceeding that the trial court should consider the preference of the children regarding custody. We have reviewed the transcripts and the record in this cause and cannot say that the trial court’s determination was contrary to the children’s best interest.
V. CHANGE IN CUSTODY BECAUSE OF RELOCATION
1. Mom moved to Texas and child wanted to stay with dad in Oklahoma
2. Clearly, no judge should acquiesce to the request of a child to make a significant change in custody and/or visitation without carefully weighing whether or not the child is both old enough and mature enough to have the request taken seriously. Additionally, no such preference should be considered unless the judge then determines that the custodial change requested is one that has been carefully and thoughtfully arrived at by the child making the request. For the foregoing reasons, there is no doubt to the undersigned that all of the criteria have been met so that [FIL’s] preference should (and will) be given a great deal of credence by this Court.
3. ¶ 17 The evidence clearly shows FIL expressed a preference to live with Father for well-articulated and appropriate reasons. She was 12 years-old at the time of the hearing, and the rebuttable presumption therefore arises pursuant to 43 O.S.2011 § 113 that she “is of sufficient age to form an intelligent preference.” Although this is not binding on the trial court, the court expressly found FIL to be “old enough and mature enough to have the request taken seriously.” The court gave FIL’s preference and the reasons for it serious consideration and did an in-depth judicial assessment of the current custodial arrangement. Based on the evidence before us, we find no abuse of discretion in awarding custody of FIL to Father.
VI. SOLE CUSTODY TO JOINT CUSTODY
1. Mother had custody, father moved for joint custody and equal time
2. ¶6 As the district court noted and the record shows, Father had made “significant improvements in his ability to safely care and provide for the minor children” since the entry of the 2007 custody order. Father’s evidence established that he attended conferences with his children’s teachers, participated in school field trips and other activities, read books to his children’s classes and coached their sports teams. Outside of school, Father’s home was a safe, healthy environment for the children; he helped them with their homework and extracurricular activities, provided transportation when necessary and sound nutritional meals while the children were in his care.
3. Father also entered an offer of proof, that had his children been permitted to testify, they would have testified they wanted to spend equal time with him. The Court denied request of in camera review. The children were between 5 and 8 years old, so 43 OS 113 doesn’t apply
4. ¶7 The district court concluded that as admirable as Father’s efforts had been, becoming a better parent, in and of itself, did not automatically entitle Father to a change in custody. We agree. Gibbons, and those cases addressing the modification of an existing custody order, have focused the analysis not only on a change in circumstances but also on the effect of that change on the children. “[A]pplicant must show that the change in conditions or circumstances affects the welfare of the children and that a change in custody would result in greater benefit to the children.” Stanfield v. Stanfield, 1960 OK 55, ¶ 0, 350 P.2d 261 (affirming the denial of the non-custodial parent’s motion to modify and cited in Gibbons for stating one of the “basic rules” for determining a motion to change custody). Further, the fact pattern here is essentially identical to the facts in Gibbons: non-custodial parent sought a change in custody showing non-custodial parent’s circumstances had changed. The Gibbons Court found that evidence insufficient and reversed the order modifying the original custody order because: “mother failed to sustain the burden of proof of making it appear that the change in her condition would result in the boy’s being substantially better off, in those respects, if his custody were changed from the father to her.” Gibbons, 1968 OK 77, ¶ 24, 442 P.2d at 487. We also find this record indistinguishable from facts on which Stanfield was decided.
5. In the present case there has been a showing that defendant is now in a position to provide a home for these children in a good environment. However, there has been no showing that such home and environment is better than that provided by plaintiff and that a change would be of greater benefit to the children and their welfare. . . . Defendant’s change of conditions alone is not sufficient reason, in our opinion, to require that these children be removed from their present surroundings and transplanted into an entirely new environment. Stanfield, 1960 OK 55, ¶ 8, 350 P.2d at 263.
VII. CHANGE PARENTING TIME NOT CUSTODY
1. Father wanted to have children full time, not week on week off, based on children’s preference
2. ¶5 During an in camera interview with the trial judge, the teenage children expressed their preference to live in the family home, now Father’s home. The children did not wish to shift from home to home on a weekly basis because it was inconvenient and disruptive. They explained the family home was more comfortable because they grew up in this home, it was familiar, and their personal effects were located in the home. They also had more privacy in the family home because two of the children had to share a room at Mother’s home. The children also preferred that the family home was located a short distance from Father’s work. This enabled Father to come home for lunch, attend sporting practice and events and offer transportation more readily than Mother, whose office was located downtown.
3. ¶7 At the conclusion of the merits trial, the trial court found Father failed to sustain his burden of showing a substantial, permanent, continuing change in circumstances since entry of decree of divorce or that the children would be better off with the requested modifications. The court also found the children failed to state good or well-supported reasons for a change because the children had always opposed the joint custody plan. Thus, there had been no change in the children’s attitudes.
4. ¶15 Here, the evidence revealed the teenage children preferred to reside in the family home because the split physical custody arrangement was inconvenient, disruptive and uncomfortable. Although Mother understandably argues to the contrary, we cannot say these reasons are unfounded, juvenile or lacking in merit. Considering the ages of these children and their clear preference to live with Father, we find Father sustained his burden of showing the modification was in the children’s best interests. Accordingly, we hold the trial court’s order denying such modification was against the clear weight of the evidence and an abuse of discretion and should be reversed.
1. Father wanted more/expanded visitation because of move to Arkansas
2. Court refused to allow child to state his preference
3. ¶13 The trial court’s application of § 113 to only “custody” or when “limiting visitation”, ignores the statute’s clear and unambiguous language mandating the court to consider the preference of a child twelve years of age or older when determining “period of visitation” issues as clearly involved in this matter. Although the preference of a child who is twelve years or older is not binding on the trial court and is not the only factor the court should consider, in change of custody cases where the child has asked for the change a “best interest determination cannot be made fairly and reasonably without hearing from that child.” Nazworth v. Nazworth, 1996 OK CIV APP 134, ¶6, 931 P.2d 86, 88. The trial court’s total failure to comply with § 113 in this case constitutes legal error, requires reversal of the trial court’s orders modifying visitation and awarding attorney fees and remand of the case for further proceedings pursuant to § 113. Bishop v. Benear, 1928 OK 553, 270 P.569, 571-572. Accordingly, we find it unnecessary to consider Mother’s other arguments.
4. ¶14 Based on the foregoing reasons, the trial court’s orders are REVERSED, and the case is REMANDED for further proceedings in compliance with this opinion.
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