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A 14-Year-Old's Preference

In a Custody Dispute, or Parent-Time Action, Can a 14-Year-Old Minor Child Choose Which Parent to Live or Exercise Parent-Time with?

In the State of Utah, the answer is no. There is no Utah statute which allows a minor, at any age, to choose which parent he wants to live with, or whether he or she will exercise parent-time with the other parent. There is a misperception being perpetuated that when a child reaches the age of 14, that child will be able to decide with whom he wants to live or whether he wishes to exercise parent-time. Many parents use this as an argument to change custody or refuse parent-time, saying that their child just turned 14 years of age, shouldn’t they get to choose whether they exercise parent-time?

When a parent allows a child to remain home regardless of an order requires the child to exercise parent-time with the other parent, they may find themselves before the court on an Order to Show Cause (a contempt action). Not only is the parent likely going to be held in contempt, she can expect to pay the other party's attorney fees for bringing the matter to court.

So where did the "14-year-old" misunderstanding begin? Many people coming into our office have been told this at some point. We're not sure where the confusion initially started, but it may be a misunderstanding of case law.

The Utah statute which may be the basis for this misconception says, in part:

The court may inquire of a child and take into consideration the child's desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child's custody or parent-time otherwise. The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.

Utah Code § 30-3-10(1)(e)

This statute states that the child’s desires regarding a custody award may be taken into consideration by the court, but the child’s desire is not controlling.

If there is a current order, the child must follow it. The parent will be held in contempt if the child does not follow it.

Please note, there is a common argument that if a child over the age of 14 doesn't want to exercise parent-time with "Parent A," Parent B can't be forced to move the child. It's arguable that the child is too big or strong to force him or her to the other parent. This argument is inadequate. If that child wished to go to a friend's house for drugs, most parents would find ways to stop it (whether as small as "grounding" the child, restricting privileges, or taking a cell phones, to the extremes of calling the police). The court expects each parent to take parent-time just as seriously.

For custody battles, the age of 14 is mentioned as the age at which a child’s desires may be given added weight, but even then, the child’s desires are not the controlling factor. The court takes many other factors into consideration, always with the best interests of the child in mind. These additional factors for consideration can be found in Utah Code §§ 30-3-10(1)(a) and U.C.A. 30-3-10.2.

Interestingly, a child's preference at any age can be considered by the court, assuming the child is at a sufficient age to legitimately have a preference (i.e., a three-year-old's "preference" is never considered, but a 12-year-old's preference would be).

Just as a 14-year-old's preference is explicitly given "added" weight, a 17-year-old's preference would be given even more weight. The older a child gets, the more weight his/her preferences have. These preferences are never the sole factor (and never a reason to modify a custody arrangement alone).

The case of Cummings v. Cummings (821 P.2d 472, Utah App. 1991) presents an example of when a child’s desires were given only minor consideration in relation to other factors. During the trial court phase of the custody question, the judge spoke in chambers with the then-11-year-old child, who stated that he preferred to live with his father. The trial court ruled that custody of the two minor children of the parties should be given to the father. On appeal, the appellate court found that too much weight had been given to the 11-year-old child’s preferences, and that the prior custody arrangement with the mother had a long and successful history. The appellate court reversed the trial court’s decision and awarded custody back to the mother. While the appellate court acknowledged the 11-year-old's preference should be weighed, it wasn't sufficient for a change of custody.

In the case of Bake v. Bake (772 P.2d 461, Utah App. 1989), the desires of the children involved were considered and followed, given other factors which indicated that the desires of the children would be consistent with their best interest. After the initial custody arrangement with the children’s father changed because of a move to another city, the children expressed a desire to return to their former residential city and live with their mother. The trial court granted this change in custody, feeling that it would be best for the children to return to the life they had known and in which they were happier. The appellate court affirmed this decision.

The input and desires of minor children are not controlling factors in custody arrangements, even when the age of 14 has been reached. When a child turns the age of 18 and is a legal adult, he or she can choose whether he wishes to exercise parent-time with the other parent (and how much).

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