My female friend has a seven year old son but lost custody when the boy was three. She hasn't seen her son in nearly two years. Her ex-husband is doing everything possible to prevent her from seeing the child. At what point does the child's desire to see his mother factor into the process? Does it matter if the child is 7, 10, 14?
It is the Court's desire to do what is in the child's best interest. If the Court feels that the child has acquired an adamant level of maturity to develop a valid opinion, they will start paying attention to the child's thoughts. The Court does not have to carry out the wishes of the child but should be aware of the child's druthers. Some Courts have taken the opinion of children as young as 7, but most often the Courts start paying attention to the children's thoughts the older they get, more around the age of 12. Every child is different.
A child's opinion never controls, although it becomes increasingly influential as they get older. Even then, though, the court would want to know if the child is expressing their opinion in a coherent and rational way, that there is a rational basis for their wishes (e.g. if Dad lets the child stay up all night watching TV, this is not a rational basis), etc.
If your friend lost custody for reasons having to do with harm to the child, however, then she'll have an uphill battle. If she can demonstrate that the reasons for her having lost custody have changed, she can ask the court to view this is a significant change of circumstances.
Also, there is a difference between "losing custody" and "not seeing the child." Even a non-custodial parent will usually have visits, and your post suggests that your friend had visits for two years before they "stopped." This leads to the question of why they stopped. If there is no court order suspending visits, then your friend may have to take the dad back to court to enforce resumption of visits.
All in all, your friend should consult with an experienced family law attorney, so that her questions can receive a more complete analysis.
Christina Josephine FerranteChild Custody LawyerRancho Cucamonga, CA ·
The court is bound to do what is in the child's best interests, so if the child wants to see his mother, it is likely there will be some sort of reunlfication plan. Recent California legislation has provided that children of 14 years must have their voices heard if they so desire. The process, if she returns to court to request visitation, automatically includes child custody and visitation mediation during which the child can be interviewed at any reasonable age.
The child's age can matter. During the teenage years, the child is more likely to be able to fully articulate the issues in the home environment and what schedule he would prefer. The court has to weigh the benefits of interviewing a younger child.
