Bill calls for child's opinion in custody matters to be considered at 14

Published: Friday, Feb. 1 2013 7:50 p.m. MST

SALT LAKE CITY — When Brian Garrett arrived at the Capitol on Friday, he announced he would be speaking on behalf of his children.

The divorced father recounted the experience of his oldest son, now 16, who at age 12 wrote a letter asking his parents to equally divide the visitation time between their two households, located only a mile apart. For the past four years, that request has met opposition from the boy's mother, Garrett said.

A bill that received a favorable recommendation Friday from the Senate Judiciary, Law Enforcement and Criminal Justice Committee may hold a solution for Utah families who find themselves in a similar situation. 

Sponsored by Sen. Luz Robles, D-Salt Lake City, SB18 proposes that courts consider the opinions of children 14 and older when deciding on custody for divorced parents. Current law sets the age at 16.

The proposal received a unanimous recommendation from the senators in attendance. 

Garrett, an avid outdoorsman, noted that his son has been allowed to ride an off-highway vehicle since he was 8 and hunt with a high-powered rifle since he was 12. But only now will the teenager's preference regarding spending time with his parents be taken into account by the court. Custody negotiations between Garrett and his ex-wife have been reopened, this time by the boy's mother, Garrett said.

"He'll probably be 17 before we resolve this," he said. "By the time this proceeding is over, my son can take an oath to protect and defend the Constitution of the United States as a member of the Utah National Guard and go to basic training, but he's too immature to say, 'I'd like to see the time split equally with my parents.'"

The proposal has more than a year of debate behind it, having been presented during the 2012 Legislature.

"This is allowing and empowering children who are in the middle of the whole thing, whether we like it or not, to say something," Robles said. 

In addition to giving consideration to children's wishes, Robles asserts the change would save money for families entangled in an already costly procedure.

As Sen. Todd Weiler, R-Woods Cross, pointed out, Garrett and his son would have had recourse if they had ordered a custodial evaluation, in which the child's opinion would be sought regardless of age.

But the process is expensive. When Garrett looked into the possibility of a custodial evaluation, he was told the cost would fall between $5,000 and $8,000, before any attorneys' fees were assessed. 

The bill keeps with existing law in that the child's testimony would not be a controlling factor in the court's decision, and testimony would be given in a private interview with a judge rather than a courtroom spectacle, Sen. Mark Madsen, R-Lehi, clarified. That opinion would be one of many factors to be weighed in a custody decision.

Peter Cannon, speaking on behalf of the Utah Eagle Forum, voiced the group's opposition to the proposal, arguing it would put undue pressure on unprepared minds, as well as impact a child's attitude toward parental and judicial authority.

"We still want children (at that age) to believe 'mom and dad make my rules, and I follow them,'" Cannon said. "If we change the age at which children believe they get to choose which parent they live with, children will begin at an earlier age to believe they call the shots."

As the law is currently written, Cannon said no reference is made as to an age when a judge can petition a child's opinion, but rather the age at which that testimony may carry weight in the decision.

Cannon also expressed concern about possible backlash from one parent should the child speak in favor of the other, as well as the internal struggle a child would face in choosing. Cannon pointed out that some young children have been known to tell both parents they would prefer to live with them to avoid displeasing either of them.

In response to Cannon's concerns, Madsen argued that his experience raising his children has taught him that kids should be given "as many opportunities as possible" to make decisions, and he reaffirmed that final custody decisions would rest with the court.

E-mail: mromero@deseretnews.com

Twitter: McKenzieRomero

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