Karen S. Hindson, Hindson & Melton LLC

Custody election of a 14 year old
In divorce cases or later modification actions, it is common for a child age 14 or older to make a “custody election” stating which parent the child wants to have physical custody (where the child wants to live). Prior to 2008, the 14 year old child’s custody election was controlling unless the judge found the selected parent to not be a fit and proper custodial parent.   Starting in 2008, the law changed to give the judge greater discretion to overrule the 14 year old child’s custody election if the judge did not believe it to be in the child’s best interest.   Since 2008, and currently, the law states: “in all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child’s selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child.”  Thus, if a custodial parent whose 14 year old has elected to go live with the other parent strongly believes that it is not in the child’s best interest to reside primarily with the other parent,  the custodial parent can present evidence to the judge of the reasons why, and request that the judge overrule the child’s election.   Since 2008, the judge need not find the other parent “unfit” in order to overrule the child’s election – but the reasons to overrule the child’s election must be good reasons and the case presented as what is in the “best interest of the child”.   To discuss your individual situation contact Karen Hindson of Hindson & Melton LLC.

Parenting Plan
In all cases (2008 or later) in which the custody of any child is at issue, a parenting plan will be required. The final decree in any action involving custody (including modifications) will incorporate a permanent parenting plan.

The statute identifies elements generally required of a parenting plan. Included are items such as:

  • close and continuing parent-child relationship and continuity in the child’s life is in the child’s best interest
  • a child’s needs change and grow as the child matures and the parents should consider this to minimize future modifications.
  • the parent with physical custody will make day-to-day decisions and emergency decisions while the child is residing with such parent.
  • both parents will have access to all of the child’s records and information, including education, health, extracurricular, and religious

The statute also identifies elements normally included in a parenting plan, unless the parties agree otherwise or the judge orders otherwise:

  • where the child will spend each day of the year
  • how holidays, birthdays, vacations, school breaks, and other special occasions will be spent including time of day
  • transportation arrangements including how and where the child will be exchanged and how transportation costs will be paid
  • whether supervision is needed, and if so the particulars
  • allocation of decision-making authority with regard to child’s education, health, extracurricular activities, and religious upbringing. If the parties agree the matters should be jointly decided, how to resolve a situation in which the parents disagree.
  • what, if any, limitations exist while one parent has physical custody in terms of the other parent contacting the child and the other parent’s right to access information regarding the child

Binding Arbitration is Allowed
The 2008 statute says “it shall be expressly permissible for the parents of a child to agree to binding arbitration on the issue of child custody and matters relative to visitation, parenting time, and a parenting plan. The parents may select their arbiter and decide which issues will be resolved in binding arbitration. The arbiter’s decisions shall be incorporated into a final decree awarding child custody unless the judge makes specific written factual findings that under the circumstances of the parents and the child the arbiter’s award would not be in the best interests of the child.”

Factors for the judge to consider in determining the best interest of the child
Any relevant factor, including:

  • the love, affection, bonding, and emotional ties existing between each parent and the child
  • the love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children
  • the capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child
  • each parent’s knowledge and the familiarity of the child and the child’s needs
  • the capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent
  • the home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors
  • the importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity
  • the stability of the family unit of each of the parents and the presence or absence of each parent’s support systems within the community to benefit the child
  • the mental and physical health of each parent
  • each parent’s involvement, or lack thereof, in the child’s education, social and extracurricular activities
  • each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child
  • the home, school, and community record and history of the child, as well as any health or educational special needs of the child
  • each parent’s past performance and relative abilities for future performance of parenting responsibilities
  • the willingnessand ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child
  • any recommendation by a court appointed custody evaluator or guardian ad litem
  • any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent
  • any evidence of substance abuse by either parent
  • in cases involving family violence, there are additional factors

For more information about the new law or to discuss your specific child custody situation, contact  Hindson & Melton LLC.