This question is a frequent flyer when it comes to dissolution and child custody cases. Everyone has an opinion or a belief they've garnered from a friend of a friend who lost custody of a teenager because the child testified. Nearly every time someone comes to me with what they believe to be the "magic number," they're wrong.
The correct answer in the state of Iowa is that there is no magic number. There is no cutoff or minimum age for a child to decide which parent with whom he or she wants to live. Or, as a judge put it recently when a self-represented litigant asked this question of them during a hearing, "a child cannot choose until they are 18."
Iowa Code 598.41(3) provides a lengthy list of factors for the Court to consider when deciding what custody arrangement is appropriate. The factor in subsection (f) states that the Court should consider "[w]hether the custody arrangement is in accord with the child's wishes or whether the child has strong opposition, taking into consideration the child's age and maturity" when deciding what is in the child's best interests.
The case law expands upon that factor, giving different considerations for the Court in deciding how much weight to attribute to a given child's statement of where they wish to live. A child's preference is not controlling, but it is important. The Court considers the child's age and educational level, the strength of the preference, the intellectual and emotional makeup of the child, relationships with family members, the reasons for the decision, the advisability of recognizing the preference and the realization that the court cannot be aware of all the factors that influence the child's decision. See In re Marriage of Ellerbroek, 377 N.W.2d 257, 258-59 (Iowa Ct. App. 1985).
Each case is going to require specific analysis, which is more complicated than something you will find in a blog post on an attorney's website. If you are interested in establishing or modifying child custody based on your child's wishes, contact us to schedule your initial consultation. We would be happy to discuss these matters with you.
Over the last two days, I received training geared toward probate and elder law mediation. So many times disputes arise when families are trying to determine what is best for aging, disabled, or ill parents. Problems can occur after loved ones are gone as well, during the probate process.
The courtroom is usually not the ideal place for the resolution of these issues. Families need an opportunity to confront the issues and attempt to work through them so that they can be at peace with deciding who will be mom's caretaker, or where dad will live, or how to split up the 300 acres of farm land they all inherited together.
The Polk County probate court has gotten approval from the Iowa Supreme Court for a three-year pilot program to establish a mediation program for estate disputes, trust disputes, and guardianship and conservatorship disputes for both adults and minors. The Judge in Polk County has the discretion to refer cases to mediation when he thinks it will be beneficial, but the parties in these types of cases can voluntarily enlist the services of a mediator statewide. A mediator can broker an agreement as a neutral party, and even help you find the resources you and an aging relative need to make everyone happier and keep everyone safe.
If you are facing an elder law or probate issue and want to keep it out of Court if possible, contact our firm to ask how we may be of assistance. Mediation puts the solution-making in your hands, and much of the time people walk away a lot more at peace with the outcome than if a judge makes the determination for you.
This up and coming area of mediation is yet another arrow in our quiver to help you resolve your matters favorably, affordably, and quickly. Put us to work for you!
A blawg about solo, general and rural practice.
Melissa S. Larson is a solo practitioner in Greenfield, Iowa. She has a general practice, and offers mediation and collaborative law services. Melissa is a mother, wife, daughter, sister, grand-daughter, cousin, niece, aunt, friend, attorney, photographer, writer, student, teacher, and wanderer. She loves Gilmore Girls and Dr. Pepper, and knows far too many song lyrics.
"Go confidently in the direction of your dreams. Live the life you have imagined." -- Henry David Thoreau
"Live, travel, adventure, bless, and don't be sorry." -- Jack Kerouac
"The best way to find yourself is to lose yourself in service to others." -- Mohandas K. Gandhi
© 2019 Melissa S. Larson, P.C.