Divorce Wisdom: The Teenage Dilemma

I am often asked the question of what age can a child actually chose which parent they want to live with.

The answer in the Michigan Family Courts varies from courtroom to courtroom.

When one parent seeks a change of custody and the court finds that the requesting parent has proper cause to request that the court conduct a hearing on the issue, the Court’s focus will be on the child’s best interest as outlined in the Michigan Child Custody Act (MCL 722.23). The Act considers twelve (12) factors in determining what custody and parenting arrangement are in a child’s best interest.

Pursuant to the Custody Act, the “Best interests of the child” means the sum total of the following factors to be considered, evaluated and determined by the court as follows:

• (a) The love, affection and other emotional ties existing between the parties involved and the child.
• (b) The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
• (c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care and other material needs.
• (d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
• (e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
• (f) The moral fitness of the parties involved.
• (g) The mental and physical health of the parties involved.
• (h) The home, school and community record of the child.
• (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
• (j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
• (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
• (l) Any other factor considered by the court to be relevant to a particular child custody dispute.

Obviously Factor (i) is the factor that enables the Court to consider the preference of the child, if the child is considered old enough to express such a preference. Each judge has the right to determine what age is old enough to interview a child. The Michigan case of Bowers vs. Bowers, 190 Mich. App. 51; 475 N.W.2d 394 A (1991) states that children as young as six (6) years of age may be considered old enough to express a preference as to where they want to live. The case further states, that a child of nine (9) years of age is in fact old enough to have their preference given some weight by the Judge.

If physical custody is an issue, a judge is limited to asking a child privately about his/her preference only. The Judge may not question a child beyond preference. If a child is interviewed by the Judge, the Judge’s findings can only reference that the child’s preference was considered, however who the child actually prefers to live with does not become part of the court’s written findings. Some Judges in Michigan weigh a child’s preference more heavily the older the child is at the time of the dispute. Ultimately, the Judge’s own opinion on how heavily to weigh preference is quite subjective.

It has long been debated whether a teenager who reaches a certain age, say one that is old enough to drive, should have the right to choose which parent he or she wants to reside with. The preference of a child tends to also be treated differently depending upon whether custody is being determined when a couple is getting divorced versus a post judgment custody battle where one parent is trying to change an established physical custody order. In the latter situation, some judge are not swayed by the age of the child and will strictly adhere to the previous custody order regardless of where the teen wants to lay their head at night.

I believe a teenager’s preference regarding where he or she wants to live when his/her parents are divorcing will many times actually control the outcome of a custody dispute. If a sixteen (16) year old wants to live with dad, is a trial to determine that child’s custody worth the fight? I think not. Some possible exceptions would be where the preferred parent is actually preferred because he/she has no rules or boundaries for the child, often caused by that parent’s own absorption with addiction or other unhealthy pursuits, which could place the child in danger. If one parent is truly unfit to serve as the custodial parent, the healthier parent should be awarded custody, regardless of the child’s preference because the best interest of the child would be served by awarding custody to the more suitable spouse in the divorce.

But what should happen in a case where the child’s parents have been divorced for quite some time and there is a long standing custody order in place? What if the parties’ sixteen (16) year old daughter has had it with her mother and wants to live with her dad at all costs? Should mom fight tooth and nail to keep her rebellious daughter under her roof just because she has a custody order that requires her to be there? What if mom thinks her ex has alienated the daughter and that is the cause of her teenager’s angst?
In my experience, problems between divorced parents and problems between teenagers and one of their divorced parents are quite complex and cannot be easily labeled or resolved.

After practicing family law for close to two (2) decades, my feeling on teenagers is this:

Remember the old saying if you love someone set them free? If your teen is in a state of “hate” with you and your ex-spouse is not a drug addict, alcoholic or felon, let your child go, but do ensure the following type of safeguards are in place:

• Let your teen know how much you love them and that your door is always open.
• Establish therapy for you and your child, with participation from the other parent.
• The revised parenting time schedule should be on a trial basis, with input from the therapist.
• Your child should never feel like they won or that they are in control. Both parents need to get on the same page regarding rules and discipline before the custody/parenting arrangement is changed.
• Give your teen space, but show them your constant support regarding their school, sports and other activities.

Hopefully, with a little space and a lot of love, your relationship with your teenager will improve tremendously without the stress and expense of a protracted custody battle.