A question I often hear is “How old does my child have to be before she can decide where she will live?” A derivative of that question also is “At what age can a child refuse to follow the custody schedule?” These are really two separate issues, but both seem to be cropping up frequently these days.
In Missouri, the legislature has listed as one of the eight factors the trial court is to consider in an order of custody is the “wishes of a child as to the child’s custodian.” The Courts of Appeals have indicated that starting around age 11, a child can express his or her opinion about where he or she would like to live primarily. The older a child gets, the more weight his or her opinion is given in deciding who should have custody of the child. I often explain to my clients, if a child is 16 and expresses a desire to reside with one parent, the likelihood that the court will not grant that request is low. Of course as expected, there are exceptions to this rule. If the parent is abusing drugs or has been abusive to the child or does not have adequate housing, perhaps the court would not grant the request. These situations are relatively rare though, and so in essence the child’s opinion may be the deciding factor.
A more common problem that many parents face is when a child of whatever age does not want to follow the custody schedule ordered by the court or agreed to by the parents. I have seen cases of children as young as 4 years old, where one parent claims the child does not want to attend visitation with the other parent. This can become increasingly problematic, and can lead to a major breakdown in a parent’s relationship with his or her child. What can a parent do if the other parent is denying him or her access to the children? In Missouri, a mechanism was created for those situations called a Family Access Motion. The party affected can file this Motion with the court and receive a quick hearing date to get a Judge’s input, and to hopefully get back on track.
However, oftentimes this remedy may not be adequate. That is, if the custodial parent appears in court and tells the Judge that the child does not want to go to visitation with the other parent. This situation is more difficult to combat. If a child is a teen, it may very well be difficult to get enforcement of an existing court order. Oftentimes, the local police department is unwilling to enforce an order when an older child is involved. And it goes without saying that most parents do not wish to involve the police in their custody disputes.
The two most important things to do in cases where you are being denied custody or access to your children are:
(1) Document each instance where you attempted to take your custody time and were denied and
(2) Investigate whether you and the child may be able to seek some joint therapy. If the child is being alienated by the other parent, a few sessions with a counselor may offer some relief.
Either way, it is important to remain supportive of the child. Continue calling, attending his or her extracurricular events and remain generally active in his or her life. There simply is little a court can do to force children to see parents when they don’t wish to do so. However, by remaining a constant source of support for the child, you may be able to rectify the situation outside the judicial system.
Michele Hammond is a Senior Attorney with Cordell & Cordell, P.C. and practices exclusively in the area of domestic relations.
