A 12-Year-Old Can Express a Preference as to Where He or She Chooses to Live
Video Transcribed: My name is Jason Lile, and I am a Dads Rights lawyer in Tulsa. I wanted to cover a topic that comes up often in my practice when I’m representing clients: can a child choose who they want to live with?
So the simple answer is that it’s not very simple. In Oklahoma, there is a law that says when children are 12 years old, they are allowed to express a preference to the court about custody and visitation.
Now, what does that mean? It means there’s a presumption that a 12-year-old is old enough and mature enough to express an intelligent preference. It does not mean they get to decide, and it does not mean that that’s dispositive of what the judge will do.
That being said, if you have children, some 12-year-olds are more mature than other 12-year-olds. That’s sort of an arbitrary number. But you need good representation and advice about whether or not that’s the right thing to do in your case.
Depending on the judge and the county, sometimes that preference can be expressed in a judge’s chambers with the child there by themselves. And questions arise like, should you ask for a transcript of what’s going on there?
Should the attorneys be allowed to submit questions to the judge for the child, et cetera? Sometimes, it’s rare, but I’ve seen judges put the child on the stand to express that preference. How do you deal with cross-examination? Do you want to do that to your child, et cetera?
The other thing is that if children younger than 12 have a preference, there is a right and wrong way. You cannot get the child to express the preference directly because they’re not old enough under Oklahoma law.
You can, however, discuss with your lawyer the need and the use of having a guardian ad litem, which would be an independent attorney appointed for the children who would interview the parents and the children and then express what, in their opinion, would be in the best interest of that child or those children.
It’s a completely different way to get those children’s preferences into the court, and they’re treated differently, and a good family law attorney should know the difference and be able to advise you as to what’s best to do for you.
Ultimately though, children 12 and older do get to express a preference. The judges often will follow the child’s preference, and if you’re on the other end of that, and you disagree with the child’s preference, you definitely need a good attorney to represent you to be able to rebut that preference properly, present the type of evidence needed, deal with the child’s preference, argue to the judge why that preference shouldn’t be followed exactly.