Best interest is defined by the Nevada Revised Statutes or NRS § 125C.0035. Here, we explore the wishes of the child and the requirement that the child be of a sufficient age and capacity.
A lot of parents believe that at a certain age, a child automatically gets to decide which parent that the child wants to live with and whether or not the child follows the Court Ordered timeshare.
We cannot stress enough that this is not the law! There is no “magic age” when the child gets to decide if and when to see the other parent and the child’s wishes are not the only thing that the Court is required to consider when deciding a custodial timeshare. Again, this is only one factor of the other custody factors that the Court must consider when rendering a custody decision. The Court cannot simply look at that one factor and decide without other considerations as that likely would be an abuse of discretion.
Generally, in our practice, we see the Judges getting input from a child that is over eleven (11) years of age or older. That does not mean on a case by cases basis that the Judge may not get information from younger children. There is no hard and fast rule regarding the age of the child. Most judges look at suitable age and discretion. In short, there could be very mature 11-year old children that could provide the Court valuable insight as to the custody situation or a very immature 15-year old who might want to live with the parent that has no boundaries or rules at their residence.
When you look at capacity, generally you are looking at the child being able to explain the reasoning behind their preference. As attorneys, we point out things like involvement in activities. However, as with the age, there is no hard and fast rule regarding establishing capacity for a child to provide meaningful information to the Court when the Court is trying to determine the child’s best interest.
That means for both age and capacity, the Judge gets to make up his or her mind. We believe that means giving the Judge as much information as possible to establish a basis to obtain information from the child. The one take away is that child preference is not the only thing that the Court must consider, and the Judge gets to determine the amount of weight that is placed on the child’s preference.
In future blogs, we will discuss the methods that the Court uses to obtain information from children. We examine continue to examine each of the best interest factors and provide insight based upon our unique experience as family law litigators.