Can the child choose who has custody of him/her?
In any case regarding custody or visitation, the child can express his/her preference as to which of his/her parents the child wishes to have custody or regarding limits of periods of visitation if the judge believes that it is in the best interest of the child to do so. The judge might also allow the child to testify in court about other matters.1 The child’s testimony and preference can be given in private to the judge, without the parents or attorneys present.2 However, if the court has appointed a guardian ad litem for the child, the guardian ad litem will be present with the child while being interviewed by the judge. The parents, attorneys or other parties can suggest questions or topics that they want to judge to consider in the interview of the child but the judge does not have to use those.3 At the request of either party, the judge will record the child’s interview but the parties are only entitled to get the transcript of it if a parent appeals the custody or visitation determination.4
Generally, if the judge thinks that the child is old enough and mature enough to make a good decision about which parent is best for custody, the judge will then take this into consideration (along with many other factors). The judge is not bound by the child’s choice. In Oklahoma, the courts assume that children 12 years or older are old enough to tell the judge his/her preference (but a parent can try to prevent this by showing evidence that the child is not mature enough).5
1 43 O.S § 113(A),(B)
2 43 O.S § 113(D)
3 43 O.S § 113(E)
4 43 O.S § 113(F)
5 43 O.S § 113(C)