Question: Regarding changing venues. My divorce was finalized in Oregon in 2002. I was awarded sole custody and moved to South Carolina and remarried. My children are now 15 (boy) and 13 (girl) years old and only see their father 49 days each summer, which is his choice.
The children feel that they are getting of age where they should have a say as to whether they should have to go to Oregon (different county than the divorce) every summer. I want the kids to remain having a good relationship with their father; however, as they grow older, they are pulling away and feel forced by the Oregon courts to keep this schedule until they are 18 years old.
What is the benefit of our changing venue to South Carolina? Would the court system allow teenagers more say?
Since I do not practice in South Carolina or Oregon, I cannot tell you which jurisdiction would be better for your case. Custody and placement laws vary from state to state. Therefore, you should contact a domestic litigation attorney licensed in these states BEFORE filing anything.
Jurisdiction tends to follow the children. If your children live in South Carolina and have been for quite some time, you and your attorney need to discuss the effect of the “home state” determination under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Generally, the state which ordered child support will be considered the “home state” of the child and all custody proceedings will occur in your local court unless another state has the “home state” (generally requiring the child to be there for 6 months or more). The laws of both jurisdictions should be considered before deciding where and when to file any motion.
It is possible that there is a specific statute in one of the states that provides for an age for a child to determine or provide impute into the custody decision. When there is a custody dispute in my State, the court appoints a Guardian ad Litem to determine what the best interests of the child are as to custody and placement. Generally, a child can testify when they are of sufficient maturity to understand and take the oath to testify truthfully. However, the child’s wishes are only one factor in my jurisdiction that the Guardian ad Litem and Judge use to determine the best interest of the children and the custody arrangements. Usually by 12 years old a child can testify, but the court will not give much weight to his or her choice. As the child gets older his or her wishes carry more weight. By fifteen or sixteen, if the child is of general maturity and has logical reasons for changing the placement arrangements, the court will often abide by the child’s wishes. It is generally in the best interest of the child to have visitation with both parents. Therefore, if he is exercising placement, the Court will not likely abide by the child’s wishes to forgo going to Oregon all together.
Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.