Teen-agers don't always have last word in custody

A look at two child custody cases, decided by the same judge within weeks of one another, offers a good example of how facts and family circumstances control an outcome. In both cases, a parent wished to obtain primary custody of their young teens based, in most part, upon the children's desire to live full-time with a different parent. In one case, the child got her wish; in the other, the child did not.

A child's stated preference as to which parent he or she would choose to live with is one of the factors judges must consider. How much weight a child's preference carries depends on the child's age, maturity, intelligence and reasons for his or her opinion.

In one case, a 15-year-old girl lived mostly with her father and spent three weekends per month with the mother. The child wanted to spend more time with her mother.  The child told the judge her mother could better relate to the issues faced by a young woman. In addition, the child wished to spend more time with her two half-sisters and her stepfather.

The court noted that father was a caring and responsible parent who had been the girl's primary caregiver since her natural parents separated.

But the judge, who described the girl as extremely mature and intelligent, agreed with mother that the child should live primarily with her. It was important to the judge that the child appeared to have given the question serious thought and that she came to her decision by herself.

In contrast, the same judge rejected a father's request to have his two boys, ages 14 and 12, move in with him from their mother's home. The main reason was the older boy -- although the court found him to be a mature and intelligent youth -- could not express any well-reasoned rationale for wishing to change his primary residence.

The 12-year-old was also unable to persuade the court to allow him to live with father. In what may be the result of poor witness preparation by father's lawyer, the younger boy testified that his strongest reason for wanting to move in with father was a desire to stay in the same household as his older brother.

Nor did father -- who had the boys three weekends per month -- present any solid evidence why it would be better for the children to live with him on a full time basis. The judge was asking for compelling and "forceful evidence," not just good reasons. Although the judge ended up giving father more time with the boys, he would not award father primary custody.