When, How and Why it Should be Considered

By:   Noel K.  Tucker, Esq.
Tucker Law Firm
P.O. Box 601
Edmond, OK 73083-0601
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Parents, courts and family law attorneys struggle with understanding the impact of custody litigation on children.  There is little question that some emotional trauma and imbalance in a child’s life are natural byproducts of their parents’ custody and visitation litigation.  Even when a divorce is amicable and the impact on the child(ren) is lessened with focused attention on the child(ren)’s best interest, the impact of divorce on a child can be lessened by amicable negotiations.  However, a child will likely experience a major adjustment to his or her understanding of family, security, and stability and may affect a child’s perspectives and perceptions through childhood and likely throughout life.  There is no disputing this fact, just the severity of the impact.

Philip M. Stahl, Complex Issues in Child Custody Evaluations, Chapter 6 “Child Considerations in Custody Recommendations.”  The emotional toll on children is magnified when the parents choose to use the children as pawns in their legal battleground.  When parents attempt to influence a child to support their side of the battle through manipulation or direct sabotage of the other parent’s relationship, the effect on the child’s emotional trauma is obviously accentuated.  One way a parent compounds this effect is by encouraging or demanding that the child express his or her custody and or visitation preference directly to the judge or a Guardian ad Litem appointed to Represent the child’s best interest in the litigation.  Children are impacted even without parental influence when the child forms his or her own independent opinion and desires to have his or her voice heard regarding his or her custodial or visitation preference.  This is true even if there is no influence or coaching by either parent.  Whether a child expresses a custodial and/or visitation preference to a judge as a result of either of these avenues or something in-between, the Court must make every effort to protect the emotional toll that choosing one parent over another takes on a child.
I.  Historical Development of Child Preference:
Oklahoma has a long history of allowing a child of sufficient age to express an intelligent preference for his or her custody placement.

Davis v.  Davis, 1960 OK 196, 355 P.2d 572.  See also the detailed footnote 5 of Foshee v. Foshee, 2010 OK 85.  Oklahoma has had a procedural statute on a child’s custodial and/or visitation preference testimony since 1975.

12 OS §1277.1.   Although limited to divorce actions, the 1975 statutory framework allowed the Court to consider a child’s custodial preference.  The child preference provisions were moved out of Title 12, the procedure code and codified in Title 43 with marriage and divorce in 1989.  This re-codification also expanded the Court’s discretion to include consideration of a child’s custodial preference in legal separation or annulment actions.

43 O.S. §113.   It would not be until 2002 until another statutory revision would occur.  
The 1989 re-codification of the statute allowed the Court to determine whether the best interest of the child would be served by allowing the child to express a preference as to his or her custody or limits of or periods of visitation.  The court was not required to follow the preference of the child but was specifically instructed to take other facts into consideration.

43 OS § 113, paragraph 1 - “In any action for divorce, legal separation, or annulment in which a court must determine custody or limits of or period of visitation, the child may express a preference as to which of its parents the child wishes to have custody.  The court may determine whether the best interest of the child will be served by the child’s expression of preference as to which parent should have custody or limits of or period of visitation rights of either parent.  If the court so finds, the child may express such preference or give other testimony.  The court may consider the expression of preference or other testimony of the child in determining custody or limits of or period of visitation.  Provided, however, the court shall not be bound by the child’s choice and may take other facts into consideration in awarding custody or limits of or period of visitation.”
The second paragraph of the 1989 statute revision instructed how the child’s preference was to be received.  The child’s preference or testimony was to be taken by the Court in chambers.  Whether or not the parents were present was left to the discretion of the Court.  However, if the attorneys were excluded, the Court was required to state for the record the Court’s reasons for the exclusion.  Further, if either party requested the child’s preference or testimony be recorded, the Court was required to accommodate the request.

43 O.S. §113,  paragraph 2 - “If the child expresses a preference or gives testimony, such preference or testimony may be taken by the court in chambers, with or without the parents or other parties present, at the court’s discretion.  If attorneys are not allowed to be present, the court shall state, for the record, the reasons for their exclusion.  At the request of either party a record shall be made of any such proceeding in chambers.”
The Oklahoma Legislature made significant changes to the child preference statute in 2002, which is our current statutory framework until November 1, 2011.

HB1607 amending 43 OS §113 was passed and signed by Governor Fallin on May 13, 2011.  Basically, the Bill codifies the teachings of Ynclan v. Woodard 2010 OK 29 with the exception the GAL would be allowed to be present in the in camera interview.  HB1607 will becomes effective November 1, 2011.  These revisions were not likely driven by case law due to the fact there were only a couple of cases citing the previous preference statute, Nazworth v.  Nazworth, 1996 Ok Civ App 134, 931 P.2d 86 and  In re Adoption of M.C.D. 2002 Ok Civ App 27, 42 P.3d 873.

In Re Adoption of M.C.D. is hardly informative since the child in question was only 3 years old at the time of trial.  Further, the child’s counselor testified the child would say what she thought the husband would want her to say rather than express any independent preference.  id.  at ¶33.  Neither case raised issues presented in the 2002 legislation which established three primary objectives:
1.      the Court shall determine whether it is in the child’s best interest to express a preference;
2.      if the child is of sufficient age to form an intelligent preference and, if so the Court shall consider the child’s expression of preference but shall not be bound by it; and,
3.     established a rebuttable presumption that a child who is twelve (12) years of age
or older is of sufficient age to form an intelligent preference.

43 O.S. §113.B.3.
II.  Child Preference Application and Standards:
The idea that a child of sufficient age can form a well-thought-out, intelligent preference was the subject of the    Nazworth v.  Nazworth, 1996 Ok Civ App 134, 931 P.2d 86, decision.  In Nazworth, father sought a change of custody of the parties thirteen (13) year old son based upon the chids expression of desire to live with father.  Since the request for change of custody was based solely on preference, the trial court granted mothers directed verdict that no “substantial, material and permanent” change of condition existed to warrant a change in custody.  The COCA reversed the trial court stating that the child’s best interest must be served by a “serious consideration” of the child’s preference and the reason for it. ¶6 Based on that holding,  Nazworth is most commonly cited for the proposition that a well-thought-out and intelligent preference by a child is sufficient by itself to change custody from one parent to another.

N’azworth v.  Nazworth, 1996 Ok Civ App 134, 931 P.2d 86,  is also precedential for the determination of including social security disability income as part of the recipients gross income for the purposes of calculating child support.  Further, that the dependent portion of the disability payment offsets the payor’s child support obligation.  id. at ¶9-12.   See also Nelson v.  Nelson, 2004 Ok Civ App 6, 83 P.3d 911.
Two years after the Nazworth decision the case of Coget v.  Coget, 1998 Ok Civ App 164, 966 P.2d 816  ruled a child’s preference does not have to be followed if the child’s preference is not well- thought-out and intelligent. [emphasis added]  ie.,  if not well-thought-out and intelligent it will be an insufficient ground for a change in custody.    In Coget, father obtained a change of custody o the parties nine (9) year old daughter based on her preference and that mother was living with a paramour.  However, father could not show mothers living arrangement was permanent and adversely affected the child as required by Gibbons.  Further, it appears the child’s preference was testified to by father and not obtained by court interview.  Note the child was under the age of rebuttable presumption that she was of sufficient age to form an intelligent preference.

43 O.S. §113.B.3.  In Nazworth the appellate court reasoned that where a change in  custody is sought because a child has asked for the change, the child’s interests are best served by “serious consideration” of the preference and the reasons for it.  Therefore, an in-depth judicial assessment of the current custodial arrangement should be made.  id.  at ¶6.  Obviously, in conjunction with the statute the appellate court believed the expressed interest of the thirteen (13) year old child had evidentiary significance to the best interest determination, but not he nine (9) year old.  This appears to be where the courts start considering at what age a child’s preference can be intelligently sufficient to merit judicial consideration.  However, as noted above, the rebuttable presumption that a child who is twelve (12) years of age or older was of sufficient age to form an intelligent preference was not codified until June 4, 2002

43 O.S. §113.B.3. .
It should be noted the decisions discussed above all involved initial custody or custody modification determinations that would normally require a Gibbon’s analysis

Gibbons v.  Gibbons, 1968 OK 77, 442 P.2d 482 requires the moving party to prove a substantial, material and permanent change of circumstances in the custodial home such that a change of custody would operate in the best interest of the child..  These decisions seem to have established another standard for modification based on preference, i.e., a child of sufficient age who formulates an intelligent, well-thought-out custodial or visitation preference is a sufficient change in circumstances that satisfies the Gibbons analysis.

An exception would be an Oklahoma Court of Civil Appeals (“COCA”) decision of Buffalo v. Buffalo 2009 Ok Civ App 44, 211 P.3d 92. [Decision to be discussed in detail later.], as a COCA decision is only considered persuasive and not binding authority.  Further, Buffalo was decided before Ynclan v. Woodward, 2010 OK 29, Foshee v. Foshee 2010 OK 85 and In Re Marriage of Crouch, 2010 Ok Civ App 144.  See Sup. Ct. Rule 1.200 (c)
c) Effect of Publication of Formal Opinion.

(1) Opinions of the Supreme Court designated For Official Publication when adopted will be published in the unofficial reporter (Oklahoma Bar Journal) on the Oklahoma Supreme Court World Wide Web site, and published after mandate in the official reporter (Pacific Reporter 2d). Such opinions may not be cited as authority in a subsequent appellate opinion, nor may they be used as authority by a trial court until the mandate in the matter has been issued.
(2) Opinions of the Court of Civil Appeals which resolve novel or unusual issues may be designated for publication, at the time the opinion is adopted, by affirmative vote of at least two members of the division responsible for the opinion. Such opinions shall remain unpublished until after mandate issues, after which time they shall be published in the unofficial reporte (Oklahoma Bar Journal) the Oklahoma Supreme Court World Wide Web site, and in the official reporter (Pacific Reporter 2nd). Such opinions shall bear the notation "Released for publication by order of the Court of Civil Appeals" and shall be considered to have persuasive effect. Any such opinion, however, bearing the notation "Approved for publication by the Supreme Court" has been so designated by the Supreme Court pursuant to 20 O.S.1991 § 30.5, and shall be accorded precedential value. The Supreme Court retains the power to order opinions of the Court of Civil Appeals withdrawn from publication.    These cases did not address the issue of breaking a joint custody plan via a child’s preference.  It was not until the 2004 case of Eimen v.  Eimen, 2006 Ok Civ App 23, 131 P.3d 148, that the analysis was applied to a joint custody arrangement...sort of.  The moving party did not seek to break the joint custody plan.  In Eiman the parties were in a joint custody plan, and father moved to change the equal time share to him having the primary physical custody of the children.  Neither party requested to break the joint custody plan, and the trial court ruled that the Gibbons test was not satisfied and denied father’s motion.  The appellate court reversed citing Nazworth and Nelson, supra, in that when a change in custody is sought because a child has asked for the change, then the child’s interests are best served by a serious consideration of the child’s preference.  Id at ¶14.  Further, it found that the children’s stated reasons were not unfounded, juvenile or lacking in merit.  Id at ¶15.  The appellate court ruled applying the “change of circumstances” test was error and remanded to apply a best interest determination.

The same result was reached in Hogue v.  Hogue, 2008 Ok Civ App 63, 190 P.3d 1177.  Although not a change of physical custody within a joint custody plan the husband moved to gain custody of the daughter from a split custody arrangement.  The daughter was fifteen (15) and expressed a well-reasoned position for her desire to live with her father.  Id.  at ¶8.
As is the case with many Oklahoma Court of Civil Appeals (“COCA”) decisions, opinions differ from one division to another.  Child preference is no exception.  The Oklahoma City Division III COCA decision of, Buffalo v.  Buffalo, 2009 Ok Civ App 44, 211 P.3d 923 somewhat contradicts the Nelson Division IV and Nazworth Division I decisions.  Buffalo  held “the child’s preference does not allow the court to bypass the obstacles articulated in Gibbons but that the child’s preference and the reasons underlying it can be considered and evaluated to determine if the Gibbons requirements have been met.”  In Buffalo, father moved the court to modify custody of the minor child from mother to himself.  He plead a long list of allegations including, but not limited to, school performance, multiple moves, physical abuse by a sibling and the child’s preference. Id at ¶9.  The court interviewed the (ten) 10 year old child in chambers, who specifically stated a preference to live with father.  The court ruled that father’s evidence, “aside from the testimony of the minor child,” did not support a permanent, substantial and material change of circumstances.¶3.  However, the trial court, citing Nelson,  changed custody based upon the child’s preference along with the child’s dislike of his sister.  On appeal, the COCA reversed stating preference alone is not sufficient to satisfy the Gibbons requirement of a material, substantial and permanent change of circumstances, affecting the child’s welfare to a material extent and a showing that the child’s overall welfare would improve in order to remove the child from the custodial parent. ¶18.
So how do we reconcile Buffalo?  This COCA Division III decision did not specifically overturn the prior preference decisions of  Nazworth, Hogue and Nelson.  It could be argued that the Buffalo decision simply explains how the child’s well-reasoned preference is required to trigger the Gibbons standard.  In Buffalo, the appellate court specifically stated that the child’s testimony and preference was not sufficiently articulated to form an “intelligent preference.” Id. at ¶23.  The child’s expressions were inconsistent and not a product of a long, thought-provoking analysis.  He simply preferred to live with father and did not like his sibling. Id. at ¶21.     
With the exception of the 2009 Division III opinion of Buffalo, the decisions seem to repeat the mantra that a child’s preference is a sufficient enough basis to change custody and satisfies a Gibbons analysis.  With these decisions in place instructing when the court shall consider a child’s well-thought-out preference, now the question should be asked, “what is a well-thought-out intelligent expression of preference by a child?”   Unfortunately, the decisions provide little guidance as to the specifics needed to answer this question.  Perhaps the trial court is left in a position akin to Justice Potter Stewart’s description of the threshold test for pornography, being “I know it when I see it.”

Jacobellis v. Ohio, 378 U.S. 184 (1964).
We can look at Nazworth and the prodigy of child preference cases that follow in an attempt to answer the question of what is a well-thought-out, intelligent expression of preference.   Nazworth gives actually little to no guidance because the lack of the child’s interview was the reason the decision was reversed.  In Nelson the court even considered the preference of a seven (7) year old.  However, the twelve (12) year old sibling expressed “an intelligent determination” supporting his reasons for his preference and included his desire not to be separated from his younger brother with whom he shared a strong bond.  The younger brother acknowledged the strong bond with his older brother and his preference not to be separated.  The court cited Nazworth stating that “where the preference is explained by the child and good reasons for the preference are disclosed, the preference and supporting reasons will justify the change of custody.  Id at ¶2.
In Eimen v.  Eimen, 2006 Ok Civ App 23, 131 P.3d 148, the appellate court reasserted that a child’s preference was a sufficient circumstance enough to warrant a change of custody to the father.  The children’s interview revealed that they did not want to continue to shift back and forth between both houses; that they had more privacy and comfort at father’s home because they did not have to share a bedroom, they were more familiar with father’s home because that is where they had always lived; father worked close so it was convenient for him to come home for lunch and facilitate extracurricular activities.  Id at ¶s 4, 5.
Then in Hogue v.  Hogue, 2008 Ok Civ App 63, 190 P.3d 1177, the appellate court upheld the trial court’s decision to change custody out of a split custody arrangement based solely on the child’s preference, now that the child was of sufficient age to express a preference.   Mother was awarded sole custody of two children in the divorce.  Father subsequently sought and was granted custody of the oldest child.  Later, father moved for a change of custody of the remaining child in mother’s custody based upon the child’s preference.  The court again said that a child’s preference was sufficient grounds for a change in circumstances and granted the change of custody based upon the child’s expression of preference to live with father because the child did not get along with his mother.  There was also testimony that mother did not foster a good father-son relationship.  Id. at ¶2.  Hogue did cite the 1960 case of Davis v.  Davis, 1960 OK 196, 355 P.2d 572, for the converse position that the whims, wants and desires of a minor child are not the criteria for determining which parent should be granted custody of a minor.  Id. at ¶7.
Foshee v.  Foshee, 2010 OK 85,

Interesting note in Foshee is the Petition for Dissolution of Marriage was filed December 14, 2006, and the Joint Custody Plan and Agreed Decree of Dissolution of Marriage was filed only seven (7) days later on December 21, 2006.  Although not an Oklahoma County case, if it had been, the Order may have violated the Oklahoma County District Court Rule 27(c) statute requiring 10 days(if no children) and 43 O.S. §107.1 which requires a 90 day waiting period between filing the petition and entering a Decree (if minor children are involved.) was not only the first joint custody plan that considered preference, but it was also the first case decided after the Ynclan v. Woodard, 2010 OK 29, decision that provided specific direction to the court regarding obtaining child preference testimony.   In Foshee, the parties entered an agreed joint custody plan to which mother filed a motion to break the plan nine months later stating the parties could not work together.  The trial court interviewed all three children of which 2 preferred to stay in the joint custody plan and one preferred to live primarily with father.  The trial count ruled to break the joint custody plan and grant custody to mom due to ongoing conflict between the parties and father’s anger management issues.  The COCA affirmed the trial courts decision.  The court properly considered the children’s preference but did not follow their preference¶19 finding the joint custody plan should be broken because the parties could not communicate effectively regarding the children’s best interest and dad’s unresolved anger issues.¶20   So, the Foshee court broke a joint custody plan not due to the children’s preference, but because the parties could not cooperate in making joint parenting decisions.

Daniel v. Daniel, 2001 OK 117, 42 P.3d 863, joint custody of a child is not proper were the parents are unable to cooperate.  The party moving to terminate the joint custody plan must prove that the parties cannot sufficiently work together to reach joint decisions regarding the child.  Further, upon the determination that the parties cannot cooperate, the court must break the joint custody plan and make an initial custody determination based upon the best interest of the child.  See also Rice v. Rice, 1979 OK 161, 603 P.2d 1125.  The children’s preference was primarily to spend equal time with each parent and not break the joint custody plan.  The trial court determined that the children’s preference could be dealt with by the visitation schedule and ruled to break the joint custody plan, granting sole custody to mother.
After an analysis of these decisions, we have a short list of sufficient reasons to satisfy the well-thought-out, intelligent preference standard.  Based on the published decisions, the intelligent, well-thought-out reasons sufficient to change custody have been:
1. preference and desire to remain with a sibling(s);
2.  preference and inability to get along with one parent; and,  
3. preference and evidence of convenience and comfort.
III.  Current Statute Analysis:
The current statute breaks down the process into four factors or steps.  First, note the statute makes no distinction between determinations of sole custody or joint custody, but applies to any case which the court must determine custody or limits of or period of visitation.

43 O.S. §113.A.  Then the court shall determine if it is in the best interest for the child to even express a preference.

43 O.S. §113.B.1.  Next, if the child is of sufficient age the court shall consider the expression of preference but the court shall not be bound by the preference.  If the court does not follow this preference it shall make specific findings to support its findings, if requested by either party.

43 O.S. §113.B.2.   Remember, if it is in the best interest for the child to express a preference and the child is twelve (12) years old or older, there shall be a rebuttable presumption that the child’s expression is an intelligent preference.

43 O.S. §113.B.3.  Lastly, the child may testify in chambers, without the parents present.  The attorneys may also be excluded, but if either attorney objects, the court shall state reasons for their exclusion.  Finally, either party may request a record be made of the child’s testimony.

43 O.S. § 113.C. It was access to the child’s testimony transcripts  that resulted in the March 2010 Oklahoma Supreme Court decision providing specific guidelines for an in camera interview of children in Ynclan v. Woodward, 2010 OK 29.
IV.  How Ynclan expands the child preference statute:
Ynclan expands the statutory provisions of 43 O.S. § 113 in several areas:
1.     It adds the requirement that the court has to state on the record its preliminary determination whether a child’s best interest is served by expressing a preference;
2.     It requires the court to put on the record if it believes a child of sufficient age is  not mature enough to make an intelligent, well-reasoned decision.  Also, the requirement that the preference shall be recorded  but only available to the parties if the decision is appealed; and,
3.    Provides a more detailed procedure to determine what role the attorneys will have in camera, (ask questions or provide a list of questions) if at all and if not then, as the statute also requires,  the court must specifically state why they were excluded.
Ynclan looked to multiple jurisdictions to comprise a list of reasons why everyone, other than the child, court reporter and judge should be excluded from an in camera interview of children in paragraph 12:
“1. elimination of the harm a child might suffer from exposure to examination and cross-examination and the adversarial nature of the proceedings generally;

2. reduction of added pressure to a child in an already stressful situation;

3. enhancement of the child’s ability to be forthcoming;

4. reduction of the child’s feeling of disloyalty toward a parent or to openly choose sides;

5. minimization of the emotional trauma affecting the child, by lessening the ordeal for the child;

6. protection of the child from the tug and pull of competing custodial interests; and,

7. awarding custody without placing the child in an adverse position between the parents.”

The Ynclan decision also stresses the point that a child should never be asked directly to answer the ultimate question of where the child would rather live,  reasoning that, if the parents know that this question cannot be asked, then the prospect of parental manipulation is minimized, and the child will not feel like the expressed preference is “the” deciding factor.¶13.
The Ynclan decision carefully balanced the parental due process rights with the child’s right to be heard while keeping the child’s best interest intact.  The opinion provides detailed instructions for the trial court to achieve this balance in a four step process:
1.     If the court or parties are to consider an in camera interview of the child(ren), the court must make and state on the record its preliminary determinations concerning whether the child’s best interest is served by conducting such an in camera interview AND whether the child is of sufficient age to form an intelligent preference;
2.    If the parents consent to the interview or waive their presence, the court can proceed with the interview;
3.    If one or both parents object to being excluded, the trial court must consider whether the parents want counsel present, and if so, make a determination how counsel will or will not be excluded.  (One would presume that the seven (7) factors to support a private interview would make good arguments to exclude counsel.)  If the court allows counsel to be present, which is totally discretionary, the court must also determine if counsel may question the child or submit questions.  If counsel is excluded then the court must state reasons for the exclusion.  (Again, presume facts to support one of the seven (7) reasons for a private interview.); and,
4.    The final instruction regards the transcript of the in camera interview.  If either parent requests a court reporter, a record shall be made.  
In the interest of due process the decision also instructed that the in camera interview, if made, must be made available to the parties if the decision is appealed.
V.  Post Ynclan Decisions:
Ynclan v. Woodard, 2010 OK 29 was decided on March 23, 2010.  There have been two subsequent child preference decisions since that time-- In re the Marriage of Crouch, 2010 Ok Civ App 144 decided November 5, 2010, and Foshee v. Foshee, 2010 OK 85, decided December 7, 2010.
In Crouch, the parties were divorced in Comanche County, Oklahoma, with mother being awarded custody of the parties’ three children.  Subsequently, father moved to Ft. Smith, Arkansas, and mother and the children moved to Oklahoma City.  The material change of circumstances was moving and each party requested a change in the visitation schedule.  Because Crouch was simply a visitation modification, the judge refused to interview the twelve (12) year old child stating that it was the court’s practice to only interview children when custody was at issue.   The appellate court reversed with specific instructions to follow the guidelines in Ynclan in conjunction with the child preference statute, which specifically applies to visitation as well as custody.
In Foshee, the trial court broke a joint custody plan finding the parties were unable or unwilling to execute parenting duties jointly, which is a material change in circumstances requiring joint custody to be modified.  Id. at ¶2.   The court conducted in camera interviews of the children, in which two of them desired to remain in the joint custody plan, spending equal time with each parent, and one desired to stay with the father.  The trial court broke the joint custody plan and awarded sole custody to the mother based on other evidence presented by the parties, and not the children’s preference.  In upholding the trial court’s decision, the Oklahoma Supreme Court cited the Ynclan decision to support the proposition that the child’s preference is only one factor to consider when determining custody or period of visitation.¶13.  
Neither of these two decisions shed any light on the unanswered questions of what weight should be given to a child’s preference and whether a well-thought-out, intelligent preference is sufficient to overcome the Gibbons standard to modify custody in reconciliation with Buffallo.  However, there may be an indication hidden in the footnotes of Foshee.  Footnote 6 specifically cites to Hogue

Hogue v. Hogue, 2008 Ok Civ App 63, 190 P.3d 1177., Nelson

Nelson v. Nelson, 2004 Ok Civ App 6, 83 P.3d 911. and Eimen,

Eimen v. Eimen, 2006 Ok Civ App 23, 131 P.3d 148. which could have been specifically overturned based upon Buffalo.  However, they wre cited n this subsequent decision without any mention of conflict with the prior ruling in Buffalo.  It also stated that the Hogue and Nelson decisions were cases modifying custody and not breaking a joint custody plan, and, therefore, altogether different.  The footnote went on to say “we have not addressed the appropriate weight to be given to a child’s preference when the child’s change in preference is the only change which has occurred, nor do we do so today.”
VI.  New Statute Effective November 1, 2011:
Effective November 1, 2011, HB1607

43 O.S. §113
A. In any action or proceeding in which a court must determine custody or limits to or periods of visitation, the child may express a preference as to which of the parents the child wishes to have custody or limits to or periods of visitation.



B. The court shall first determine whether the best interest of the child will be served by allowing the children to express a preference as to which parent should have custody or limits to or periods of visitation with either parent. If the court so finds, then the child may express such preference or give other testimony.



C. There shall be a rebuttable presumption that a child who is twelve (12) years of age or older is of a sufficient age to form an intelligent preference.



D. If the child is of a sufficient age to form an intelligent preference, the court shall consider the expression of preference or other testimony of the child in determining custody or limits to or periods of visitation.  Interviewing the child does not diminish the discretion of the court in determining the best interest of the child.  The court shall not be bound by the child's choice or wishes and shall take all factors into consideration in awarding custody or limits of or period of visitation.

E. If the child is allowed to express a preference or give testimony, the court may conduct a private interview with the child in chambers without the parents, attorneys or other parties present.  However, if the court has appointed a guardian ad litem for the child, the guardian ad litem shall be present with the child in chambers. The parents, attorneys or other parties may provide the court with questions or topics for the court to consider in its interview of the child; however, the court shall not be bound to ask any question presented or explore any topic requested by a parent, attorney or other party.

F. At the request of either party, a record shall be made of any child interview conducted in chambers. If the proceeding is transcribed, the parties shall be entitled to access to the transcript only if a parent or the parents appeal the custody or visitation determination.   will become law.  

First.  The court shall determine if the best interest of the child will be served by allowing the child to express a preference.
Second.  Rebuttable presumption remains that a child twelve (12) years of age will form an intelligent preference.
Third.  The court shall consider the preference but the child’s preference does not diminish the discretion of the court to determine the child’s best interest.  (The requirement that the court make specific findings regarding its ruling in opposition to the child’s preference has been removed.  This is also a departure from Ynclan.).
Fourth.  The interview may be conducted without parents or attorney’s, but they can provide questions or topics...of which the court is not bound to ask or explore.  (This provision is  a departure from Ynclan in that the Ynclan requires the court to give specific reasons why the parents and/or attorney’s are excluded.)  Further, if the court rules the parties are to be excluded the attorneys then have the right to submit questions.  However, the Guardian Ad Litem, if any, shall be present.
Fifth.  Either party can request a record of the interview be made but access to this record only available to the parties if the custody or visitation decision is appealed.
VII.  Conclusion:    
The analysis of statutory and case law on child preference gives the family law practitioner very few client guidelines but significant judicial guidance.  The child’s well-thought-out, intelligent preference shall be considered by a trial court, but only as a single factor in the total analysis.  If the child is twelve (12) years of age or older, it is presumed his or her preference is well-reasoned.  Ynclan provides a specific roadmap to follow when deciding whether or not to interview a child and what procedure should be followed but when read in conjunction with the new statute to become effective later this year the court must interview the child.
It is a likely analysis that a child’s well-thought-out expression of preference may be sufficient to satisfy the Gibbons standard for a modification of custody.  We also know that Ynclan took the discretion of the court away to determine best interest of whether or not the child should express a preference and ruled that the child’s best interest will be served by expressing a preference.  Again, the new statute takes this discretion away if the child is old enough to presume to have the ability to make an intelligent preference.  However, the weight that preference is to be given is still within the discretion of the trial court.  Until the new statute goes into effect the court must make specific findings as to why or why not a child is interviewed and why or why not attorney’s and/or parents are excluded from the interview.  After the statute goes into effect the court does not have to make specific findings regarding exclusions but must allow the parties to provide questions and topics to be explored.  However, the court has discretion to explore these requests.  The Guardian Ad Litem, if appointed, will also be present in any interview.
Most family law clients and their teenage children are under the mistaken believe that once a child reaches the age of twelve (12) they have the sole power to make a custody or visitation determination.  A review of the recent case and statutory law does not support that believe and the first step in these cases will be to educate the client and determine the legal validity of the child’s preference before a thorough analysis of the clients case can be made.