A Child’s Wish – Does it count in divorce?

Friday September 23, 2016

I was saddened by the announcement of the impending Angelina Jolie and Brad Pitt divorce.  The odds are never good these days.  More are getting divorced than staying together.  Somehow, it seemed, this one might work, despite its Hollywood backdrop.  It was not to be however.

Angelina has demanded physical custody of all of the children, with visitation rights for Brad.  They have six.  One of them is a male, fifteen years old.  What if he prefers to live with Brad?  Should his wishes be respected by the court.

In the District of Columbia, the courts consider the best interests of the child as the primary factor in awarding custody, based on D.C. Code, Title 16, Chapter 9, Section 16-914.  D.C. Courts must consider a child’s custodial preference whenever it is practical to do so.  There is no minimum age when the judge must listen to a child’s opinion; some D.C. courts have followed the preferences of a child as young as four years old. Judges have also stated that children aged eight and nine are clearly old enough to express an opinion about what custody arrangement would be in their best interest.

If a child has been abused by one parent, the custodial choice becomes clearer.  D.C. Code 16-914(a)(1) directs that, when an intra-family offense has occurred, the court “shall only award visitation if the judicial officer finds that the child and custodial parent can be adequately protected from harm inflicted by the other party,” and places on the offending parent “the burden of proving that visitation will not endanger the child or significantly impair the child’s emotional development,” Section 16-914(a-1) thus has the effect of erecting a rebuttable presumption against granting custody or visitation to a parent who has committed an intra-family offense.  It does so both by placing a burden on the abuser of proving that a grant of visitation, much less custody, would not be physically or emotionally harmful to the child and by placing a burden on the court to justify in writing any grant of custody or visitation to the abuser.  Moreover, any reading that the subsequent Section 16-914(a)(2) would authorize a result that, by vesting sole custody in an abusive or neglectful parent, would put a minor child at even greater risk than would joint custody.  That result would be absurd according to George v. Dade, a 2001 D.C. Court of Appeals Case, noting that statutes are to be construed to avoid “absurd or plainly unjust results”.

The court is not entitled to wholly ignore a Minor Child’s preference merely because of age.  As the D.C. Court of Appeals has instructed, a “child’s chronological age is not necessarily conclusive,” and “[c]hildren as young as four years old have had their preferences followed with their desires called an “important factor.”  In another Case, the Court recognized that children 12 and 8 years old “were certainly old enough” to express an opinion about their best interest.  And, yet another Case where the Court observed that a child “at nine years old was undoubtedly capable of expressing her feelings about her father and her grandmother, as well as her thoughts on the issue of custody”).  While a court is not required to follow a Minor Child’s views with regard to custody, the court is required, at least, to consider those views under D.C. Code Section 16-914(a)(3)(A).  Children can be competent.

To determine that the presumption favoring parental custody and/or parental preference has been rebutted, the court must find by clear and convincing evidence one or more of the following factors: (1) That a parent has abandoned the child or are unwilling or unable to care for the child, (2) that custody with a particular parent is or would be detrimental to the physical or emotional well-being of the child, or (3) that exceptional circumstances support rebuttal of the presumption favoring parental custody.  D.C. Code § 16-831.07.  The D.C. Court of Appeals very recently made clear that D.C. Code § 16-831.05 (a) codifies the long standing principle of a parent’s Constitutional and presumptive right to care for his or her child.  See Meyer v. Nebraska, a 1923 United States Supreme Court Case recognizing the constitutional protections afforded to parents to “establish a home and bring up children”.

In a series of cases involving unmarried fathers, the United States Supreme Court affirmed the constitutional protection of such a father’s parental rights.  The court found that the existence of a biological link between a child and an unmarried father gives the father the opportunity to establish a substantial relationship, which it defined as the father’s commitment to the responsibilities of parenthood, as demonstrated by being involved or attempting to be involved in the child’s upbringing.

Notably, D.C. Code § 16–914. Custody of children; does provide clear guidance to the Court in determining the best interest of a child. At Subsection (3), it states, in relevant part:

 (3) In determining the care and custody of a child, the best interest of the child shall be the primary consideration.  To determine the best interest of the child, the court shall consider all relevant factors, including, but not limited to:  (A) the wishes of the child as to his or her custodian, where practicable;

It would seem therefore that a child’s wish should be paramount.  It does not, however, always work that way.  Ideally, both parents will yield to what they sincerely believe is best for the child.  Unfortunately, my experience suggests that the desire for pyrrhic victories prevail and the war of roses dominate divorces.  Hopefully Angelina and Brad will not follow that pattern.

Post Script --- An Opinion by the Publisher and Editor --- Some have criticized wealthy Whites who adopt children of color.  While there is merit in being raised by those who look like you, I believe when a child, especially a parentless child, has a chance to grow up in an environment that affords him or her opportunities that child would not otherwise have, the best interest test is met by allowing that child that chance.  As Gibran reminds us, “Your children are not your children.  They come through you, but not from you.  You can house their bodies, but not their souls.”  I believe we must give every child, every chance.

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