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Basics of Child Preference

CONSIDERING PREFERENCE OF THE CHILD

Okla. Stat. Tit. 43 § 113 sets forth when and how a court can consider the expressed desire of a minor child. A minor child may express a preference; however, a court must first determine whether allowing the child to do so will serve the minor child’s best interest. 43 O.S. § 113(B). In analyzing the child preference statute, the Oklahoma Supreme Court has held that the starting point of the inquiry begins with determining if the minor child’s best interest will be served by expressing a preference. Ynclan v. Woodward, 2010 OK 29, ¶ 18, 237 P.3d 145 (Okla. 2010). Once the minor child reaches the age of twelve (12) years, a rebuttable presumption is created that the child is of sufficient age to form an intelligent preference. 43 O.S. § 113(C) (emphasis added). “[G]enerally give the trial court discretion to consider a child’s preference unless if the child is of sufficient age, [presumably 12 or older], in which case the court is required to consider the expression of preference or other testimony.” Ynclan at ¶ 18. If a court determines that it will consider the child’s preference, it shall not be bound by the child’s preference, but will consider it along with all the other best interest factors. 43 O.S. § 113(D).

WEIGHT OF PREFERENCE IN MODIFICATION PROCEEDINGS

The Oklahoma Supreme Court expanded the child preference factor into modification proceedings in Foshee v. Foshee. “[A] well-founded custody preference by a child will support a change of custody without proof of any other change of circumstance.” Nelson v. Nelson, 2004 OK CIV APP 6, ¶ 4, 83 P.3d 911 (Okla.Civ.App. 2003). The child’s preference should be considered in conjunction with the other best interest factors and is not determinative of the outcome. 43 O.S. § 113(D). “The preference of the child is only one of many factors to be considered when determining the child’s best interest concerning custody. It should never be the only basis for determining custody.” Ynclan at ¶ 12; see also Mullendore v. Mullendore, 2012 OK CIV APP 100, 288 P.3d 948 (holding that preference alone cannot justify a change in custody); Dunlap v. Dunlap, 2019 OK CIV APP 75, 455 P.3d 1 (“The fact that a child is permitted to tell the court what he wants does not necessarily establish what he needs or what is in his best interest.”). “However, as long as the child explains good reasons for the preference, the preference and supporting reasons will justify a change of custody.” Hogue v. Hogue, 2008 OK CIV APP 63, ¶ 7, 190 P.3d 1177 (Okla.Civ.App. 2008) (internal citation omitted). Further, trial courts should give serious consideration to a preference supported by sufficient reasons and perform an “in-depth judicial assessment of the current custodial arrangement.” Lowry v. Lewis, 2014 OK CIV APP 9, ¶ 17, 317 P.3d 230 (Okla.Civ.App. 2013).

An intelligent preference is one that is reasoned and thought out. See Lowry at ¶ 21; see also Dunlap at 8. The weight given to a stated preference increases based upon the reasons underlying the request and whether the minor child equivocates in stating a preference. A preference based upon being closer to extended family is considered reasonable. Lowry at ¶ 15. The longer that the minor child has held the desire also increases its weight. Lowry at ¶ 15. A preference based upon current sibling discord is not sufficient. Buffalo at ¶ 16. When the child finds the visitation schedule disruptive or uncomfortable, that reasoning can be sufficient. Eimen v. Eimen, 2006 OK CIV APP 23, ¶ 15, 131 P.3d 148 (Okla.Civ.App. 2005).

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