How Old Does a Child Have to Be to be Recognized by the Court in Custody Situations?
Moms View Message Board: General Discussion: Archive December 2007:
How Old Does a Child Have to Be to be Recognized by the Court in Custody Situations?
Hi - it's not who you probably think it is, but I was wondering how old children have to be before the Court will take their thoughts on visitation into consideration.
Nothing "bad" is going on, but my almost 12 year old child does not want to go with his father very much during his visitation. To sum it up, ex-DH picks up DS and pretty much ignores him during the entire visitation. DS says ex-DH yaks on his cell phone almost constantly, and when he isn't doing that he takes naps, and leaves DS to watch TV or play video games by himself.
I know I would probably need to check with a lawyer, but I didn't know if there might be some websites or something that would address this issue, or if someone here would know more about this. I'd rather not reveal my State at this time because I don't know if ex-DH lurks here or not.
DS still wants to see his Dad, but just doesn't want to have to go with him every single time. Thanks.
I believe the age is 12 but it isn't a choice as to what they want to do, it is just a voice in it. Meaning some judges will listen to their point of view about the situation but that doesn't mean there will be a ruling in favor of the childs wishes.
If there is a court ordered visitation schedule in place, then you have to abide by the court order. If visitation has been ordered all of the directives must be followed unless the parent with visitation rights chooses not to participate. Any order of the court must be adhered to or the parent with primary custody will be held in contempt and could find themselves in serious legal difficulties.
The proper procedure is to petition the court for modification at which time the judge usually orders mandatory counseling for the parties involved in an attempt to resolve the problem. The judge will generally talk to a child over the age of 12 with out the parents present to decide what is in the best interest of the child.
However, Very rarely will a judge deny parental visitation rights, the situation must be extreme such as documented physical or detrimental emotional abuse or in some cases abandonment. Even in such cases supervised visitation is often allowed and is handled by the state's DFS or CPS agency.
...and being bored or ignored doesn't constitute abuse, sadly children are seen as possessions by the courts of our society. Unless the father is willing to not take his visitation there is next to nothing you can do because your interference outside of the court will find you in contempt. He can show up at your house, with his court orders and a police officer and take your child for his visits. He can then report your refusal to his attorney, who can file a contempt charge against you.
Children do not have the right to choose not to go on visits until they are 18 years of age. Prior to that it is considered custodial parent interference and as I stated will find you in contempt. Unless your Ex doesn't care to see him of course and/or chooses to allow your son the right to choose when he visits. In most cases this isn't likely going to happen and if it does it can come back on you later unless there is an agreement drawn up, signed and notarized by both parties.
Thanks for the info, Bobbie. I would never, ever interfere with the visitations!! But I was definitely wondering if the Court would take DS's thoughts into consideration and make a revised ruling on the current visitation arrangement. Thanks again!
I also believe the age is 12. However, Bobbie is correct, visitation is a PARENT'S right, and you CAN be held in contempt if you don't *allow* your child their visitation. I went through all of this as a child - including meeting with a psychologist and an officer of the court to determine where *I* would live. Also, at a point when I was 14 or 15 and didn't want to visit my dad, he didn't even fight for visitation, after all we'd gone through the past 3 years.
So, if it were an issue of CUSTODY, then your child's voice would almost certainly be heard and his desire taken into consideration. However, it would probably have to be extreme for visitation to be terminated.
Depending on the judge your son might get heard. However, not all judges will decide based on the wants of the child though. It is the opinion of the court, in most cases, that a child does not have the emotional or mentally maturity to make a decision as big as visitation or where they want to live. Childrens wants and opinions change daily based on what will work best for them at the time.
It is also known, that children can be mislead into making statements in favor of one parent over the other because of things that do not constitute grounds for a visitation/custody change, not saying you or your child are doing this. Judges know that kids will decide they would rather live with Dad because he doesn't make them do chores or they want to live with mom because she doesn't prevent them from hanging out with their bad friends. These things will not likely factor into a visitation schedule.
At 12, it is likely the judge will say, your son entertains himself at home and he should be encouraged to do so at his fathers too. He might request your ex to attend parenting classes to learn how to deal with his son but that isn't likely, there is no abuse or physical neglect going on. Thus it isn't likely that a judge would order an open visitation schedule. Meaning your son can go when and if he chooses. Things like that are generally something agreed upon by the parental parties out side of court, if both parties are willing.
You can try to see about getting a change in the visitation orders, you will need to contact an attorney to file a petitioning with the courts for modification and your ex will have to agree to the modifications ..
By the way, I wasn't saying you were trying to interfere with the visitation but that is what the courts will think/say. You, being the custodial parent, are required by law to "force" (encourage) your son to go to his visits. You as the adult are accountable to the courts to adhere to the court orders. Until a judge signs an order stating otherwise your DS must attend his visits per the visitation agreement. Unless his father forgos his rights. Basically the non custodial parent can choose to take a child or not but a custodial parent does not have the right to choose to not give the child to that parent. Pretty messed up, huh?
Your son doesn't feel comfortable about requesting a change in the visits with his father? I am assuming you aren't feeling ex will listen to you either.
Most of my friends, while in my teens, were visiting on an open visitation schedule. They could go see their non custodial parent when ever they wanted but it took understanding on the part of the parts of both parents that the strict, must go see the other parent, schedule was no longer working. I did know and still know parents that insisted that the rules be followed to a T. I pay you support per the court orders and I will see my child per the court orders or else, mentality.
If you are talking about visitation I was told by an attorney in TX that there is no set age at which a child can decide if they want to go for visitation. That is only something the non custodial parent parent can decide in this state. In TX there are a few counties that have set an age but it is normally like 15 or so for the child to decide they don't want to go.
Good luck
Tarable, Per my search into Texas law, just like with all the other United States, at age of 12 a child can make a personal request to a judge for a visitation modification. A "Motion to Modify Visitation" with the child’s choice attached (a letter written by the child) must be filed with the Court so that the Court can modify its prior order. The Court will always consider technical grounds and what is in the “best interest of the child.” This is always the overriding concern of the Court.
There is no law stating a child at the age of 15, in any state with in the United States, can make a choice of where they live and/or who they visit when. It is always a choice made by the Courts, until that child turns 18 years of age and becomes a legal adult themselves. That is the only true time they have any legal right to say whether they will visit or not in any state.
Am I saying there is no chance of a modification of visitation? No, what I am saying is the non-custodial parent has more rights than the child does until the child is no longer legally a child, that is just a fact of law. A judge might hear your child and agree with the wants of the child regardless of age but the parental rights are always taken into consideration first.
Just another thing I picked up in my reading today, a parent does not have to pay child support to see their child. Child support and visitation rights are separate issues. The non custodial parent can file contempt charges on you, if they are prevented from seeing their child, irregardless of them being in contempt themselves.
Also, failure to exercise visitation is not a good reason to terminate visitation rights either. *eyebrow raiser* Basically, if at all possible the court will try to leave the door open for the non custodial parent to step back into the childs life.
So you can sit around not receiving support with an Ex that doesn't see/help with the kids and they have more rights than you do, if they are smart enough to know the laws that are out there to protect their non custodial rights.
I'm assuming there's no way you could talk about how your son is feeling with your ex? If you can help the two of them keep their relationship solid, that would be prefferable.
I did not say it was a law I said that in some counties in TX there have been statues set that at 15 the child has a right to choose if they want to go on visitation, and then it is still something that has to be brought before a judge and it is totally up to the judge.
But after all the problems with visitation I have had with my ex, he finally told my girls that if there was ever a time they didn't want to go to his house for whatever reason that he understood that they were getting older and they might have other things they want to do.
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