Judges Decide Child Custody - Not Kids

At the end of the day, it's up to the judge to decide who gets the kids.

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by Honorable Anne Kass. Ann Kass is a District Judge in the Second Judicial District State of New Mexico

Myths abound in divorce court, but one of the most damaging is the notion that when a child reaches the age of 14, it is the child who can decide which parent to live with. That is not true!

In New Mexico there is a law that says when a child is 14 years old, the judge "shall consider" the desires of the child in custody cases, but the law does not say the judge shall do what the child wants. There is a world of difference between considering someone's wishes and granting those wishes.

The fact is that judges who make custody decisions "consider" the desires of children who are much younger than age 14. However, children's wishes are only one of many factors that judges must consider.

There are many reasons why judges do not automatically accept children's wishes about custody. Here are just some of them:

(1) Children can choose to live with the parent who has promised them inappropriate benefits, a new car, or no curfew for example.

(2) Children can choose to live with the parent they feel needs them. That puts the child into a parental role which is harmful. It is the parents' job to take care of the children, not vice versa.

(3) Children can choose to live with the parent they hardly know because they have a "fairytale" expectation about how wonderful that parent will be. That fantasy seldom turns into reality.

(4) Children can choose to live with the parent who has more money. If courts approved such a decision, materialism would become even worse than it already is. The law promotes the goal of putting money where the children are, not putting children where the money is.

In other words, what a child wants is often not what a child needs.

Where a child of divorced parents is to live is a decision for grown-ups to make. Judges hope the parents themselves will come to an agreement and abide by it. We also hope the parents will agree that the children will spend time with both parents even though they may live with one parent more often and longer than with the other.

In making custody decisions, judges consider the parents' wishes and we consider the children's wishes. But every one should know that 14-year-olds do not make custody decision!

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