When Can My Kids Decide?

“Childhood is a short season.”  – Helen Hayes

I am often asked whether there is an age at which a child can determine his or her own parenting schedule.  The answer is not that simple.

In Montana, there is no magic age at which a child is vested with plenary authority to decide her own schedule of contact with her parents.  In broad terms, a court must always consider the wishes of the child as a specific statutory best interests factor under Montana law.  In addition, the statute addressing modifications of parenting plans references the need to consider of the wishes of a child over the age of 14 who desires amendment of the plan.

In practice, I have seen courts interview children (in chambers, of course) as young as 8 but the decision to hear directly from the child is not one made lightly and is highly dependent upon the specific facts of the case.  Moreover, as a practical matter, courts recognize that as children get older, they often “vote with their feet”, a behavior made all the more decisive when a child gets his/her driver’s license.  Often, parents throw up their hands and lament that there is nothing they can do, that their child is going to make her own decisions about spending time with the other parent.

In healthy parenting relationships, this doesn’t seem to be a big problem.  Older children are generally allowed to come and go as they please, the parents communicate and maintain consistency between their households, and unequivocally support the other parent’s relationship with the children.  But what if the children gravitate to one household because the rules are more lax, because they’re allowed to stay up late, watch R-rated movies, or are not forced to do homework?  What if one parent is poisoning the relationship between the children and the other parent?

Whether and to what extent the court should consider the wishes of a child in developing a parenting schedule — whether the child is 5 or 15 — will depend entirely on the unique circumstances of each case.  The gravitas to be given a child’s wishes must depend upon the child’s reasoning, maturity level, and objective measures of successful functioning like grades and other academic and social achievements as well as behavioral problems, disciplinary issues and substance abuse considerations.

Should you call your child as a witness in your case?  Never.  Never ever ever.  If you believe that your child’s wishes should be heard, take him to a mutually-acceptable counselor who can then provide data to the court regarding the child’s wishes.  Or have a GAL appointed.  You might be surprised that what you think are your child’s wishes are actually a reflection of what you want your child’s wishes to be.  The truth may be a bit different than what you thought.