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Bar Journal 2018

When Billy Wants to Live with Dad

A Guide to Using a Child's Custody Preference in Litigation

By Jimmy Oliver

Frequently the basis for a request for custody in an initial dissolution, paternity case or motion to modify is the expressed preference of the minor child. The purpose of this article is to provide guidelines about the statutory criteria that must be met by the attorney and the trial judge related to a child’s preference and practical considerations for both.


The statute regarding the preference of a child in custody and visitation cases begins with the premise that a child in any action to determine custody or visitation may express a preference as to which parent he/she wants to reside with or visit.1 Immediately following the initial section, the statute requires the trial court to first determine whether the best interest of the child will be served by allowing the child to express his/her preference. Therefore, the court must find the best interest test is met before the court allows a child to express preference.2

The next qualifier in the statute requires the trial court to determine if the child is of sufficient age to form an intelligent preference.3 If the child is 12 years of age or older there is a rebuttable presumption that the child is of sufficient age.4

There is a common misconception among the public that a child who is 12 or older can determine his or her custody in all situations. A practitioner should caution a client that it is not that simple. The statute makes clear a child’s preference is not the only factor for the court to consider, stating in part “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 periods of visitation.”5

Appellate courts have continuously reiterated a child’s preference is only one of the many factors to be examined when deciding what custody arrangements are in the best interest of a child. The Oklahoma Supreme Court held, “The preference of the child is just that – a preference. We have never held that a child’s preference is the deciding factor when determining custody or modifying custody. Rather, it is one of the many factors which the Trial Court is required to consider.”6

Because the term “best interest” can be vague or subject to the opinion of the trial court, it is important that a practitioner determine exactly the child’s reasons for the preference to show the court how those reasons advance what is in the child’s best interest. Conversely, when a practitioner is seeking custody of a child over that child’s preference, the attorney should strive to show the court how this preference is not made for the right reasons or how it would not be in the best interest of the child to grant his desire. At trial, initial evidence should be provided establishing the child who desires to express his or her preference is mature and able to do so in an intelligent matter. Likewise, if a child is mentally handicapped or has developmental limitations it is necessary for a practitioner to bring this to the attention of the trial court.

In 2004, the Court of Civil Appeals held that in a motion to modify an existing custody order the well-founded preference of a child will support a change of custody without any other change of condition.7 In so doing, the Nelson court reaffirmed previous rulings that when a child has requested a change of custody the child’s best interests are served by a “serious consideration” of the request and the reasons the child made the request.8 There should also be an in-depth assessment of the current custody arrangements by the trial court. If the child can provide good reasons for this preference, the child’s preference alone can justify a change of custody.9

In 2009, the Court of Civil Appeals, in Buffalo v. Buffalo, clarified that a child’s preference in a motion to modify case does not allow a court to disregard the hurdles outlined in Gibbons v. Gibbons. The Gibbons test, as it is commonly called, provides that to modify a child custody order, the moving party must show 1) a permanent, substantial and material change of conditions which directly affects the best interest of the minor child and 2) that due to this change of conditions, the minor child would be substantially better off with regard to his temporal, mental and moral welfare if the requested change of custody is ordered.10 The Buffalo court held the trial court should evaluate the child’s explanation, supporting reasons and factors that lead to the preference to see if the Gibbons test has been satisfied. It is not the preference itself that allows for a custody modification but the reasons provided for the preference.11 This decision was affirmed in Mullendore v. Mullendore.12

Therefore, when a parent seeks to change custody based on the new preference of a child, a practitioner should still take care to show the court how the child’s reasons for the requested change of custody constitute a change in conditions and how he or she would be substantially better off if custody was changed. Likewise, if the reasons the child wants to live with a different parent have to do with being closer to friends or a parent’s relaxed discipline style a practitioner should caution the client that those reasons alone may not constitute a change of condition under the Gibbon’s test.

First, the record should reflect a finding by the court that it is in the best interest of the child to express a preference or provide testimony about custody arrangements.13 Next, the court must make a record of its determination that the child is of a “sufficient age to form an intelligent preference.”14

Once the trial court has decided to allow the child to state his or her preference, the court must decide whether to hold an in-camera interview with the child or allow the child to provide testimony in open court. Trial courts routinely prefer to conduct in-camera interviews of a child over having the child testify in open court. The Oklahoma Supreme Court has articulated many reasons preferring the in-camera interview of children including:

1) elimination of the harm a child might suffer from exposure to examination and cross-examination and the adversarial nature of the proceedings generally;

2) reduction of added pressure to a child to an already stressful situation;

3) enhancement of the child’s ability to be forthcoming;

4) reduction of the child’s feeling of disloyalty toward a parent or to openly choose sides;

5) minimization of the emotional trauma affecting the child, by lessening the ordeal for the child;

6) protection of the child from the tug and pull of competing custodial interests; and

7) awarding custody without placing the child in an adverse position between the parents.15

The private interview by the court is to be conducted without the parents, attorneys or other parties present. The exception is the requirement that the previously appointed guardian ad litem must be present.16

Parents and their counsel are allowed to submit questions or topics to be discussed during the interview but the trial court is not bound to ask the questions or explore the suggested topics.17 Either party may request a record be made of the in-camera interview of the child. The transcript of the child’s testimony can only be disclosed if the underlying custody or visitation determination is appealed.18

The Supreme Court has also provided guidance on how the trial court should conduct the in-camera interview of a child. The child should not be asked directly where he or she prefers to live, “because specifically asking the preference provides an opportunity for parental manipulation or intimidation of the child, as well as the opportunity of the child to manipulate the parents.”19 Asking the child’s preference could also give the impression that his preference is the only factor the court will consider. Instead, the trial court should conduct the interview to learn the child’s preference while considering how the child is coping with the case, any pressures put on the child and any motives the child has in stating the preference.20

A child’s preference about custody can be a valuable tool in litigation. However, before a practitioner attempts to use this tool it is imperative to know the reasons behind the child’s decisions and to place these reasons in the correct framework for the trial court. It is also important to know the procedure a court must follow prior to taking a child’s preference in order to avoid an insufficient record on appeal to sustain the trial court’s decision.

Jimmy Oliver graduated from the OCU School of Law in 2010 and is a partner at DeLacerda & Oliver in Stillwater. He currently serves on the OBA Board of Governors, Saville Center for child Advocacy Board of Directors and as the alternate city judge for the city of Guthrie. Mr. Oliver maintains an active practice in the areas of family law, probate, guardianship and criminal law.

1. Title 43 O.S. §113(A).
2. Title 43 O.S. §113(B).
3. Title 43 O.S. §113(D).
4. Title 43 O.S. §113(C).
5. Title 43 O.S. §113(D).
6. Ynclan v. Woodward, 2010 OK 29, ¶13, 237 P.3d 145, Foshee v. Foshee, 2010 OK 85, ¶16, 247 P.3d 262.
7. Nelson v. Nelson, 2004 OK CIV APP 6, ¶4, 83 P.3d 911.
8. Nazworth v. Nazworth, 1996 OK CIV APP 134, ¶4, 931 P.2d 86.
9. Nazworth v. Nazworth, 1996 OK CIV APP 134, ¶6, 931 P.2d 88.
10. Gibbons v. Gibbons, 1968 OK 77,¶12, 442 P.2d 482.
11. Buffalo v. Buffalo, 2009 OK CIV APP 44, ¶18, 211 P.3d 927.
12. Mullendore v. Mullendore, 2012 OK CIV APP 100, ¶12, 288 P.3d 948.
13. Title 43 O.S. §113(B).
14. Title 43 O.S. §113(C)(D).
15. Ynclan v. Woodward, 2010 OK 29, ¶12, 237 P.3d 145.
16. Title 43 O.S. §113(E).
17. Title 43 O.S. §113(E).
18. Title 43 O.S. §113(F).
19. Ynclan v. Woodward, 2010 OK 29, ¶13, 237 P.3d 145.
20. Id.

Originally published in the Oklahoma Bar Journal -- OBJ 89 pg. 6 (March 2018)

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