Kids Don’t Decide Their Own Custody and Fault Doesn’t Matter
Common misconceptions in Pennsylvania family lawBy Judy Malmon, J.D. | Reviewed by Canaan Suitt, J.D. | Last updated on May 2, 2023
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Divorce is ubiquitous. Many of us know someone who’s been through the divorce process, or have been divorced ourselves. Stories of divorce are on TV, social media, the internet—nearly everywhere you look. Despite this, there remain a surprising amount of misconceptions.
What you think you know about divorce isn’t necessarily true.
Kids Decision-Making Role in Child Custody
Lansdale family law attorney Elizabeth Billies, of Dischell Bartle Dooley, says that one of the most common errors she encounters surrounds the physical custody of minor children. There is the belief that older children over a certain age (usually 12 or 14) can decide their own custody arrangement.
“I have so many people that come in and say, ‘My kid can decide where they want to live.’ And I have to tell them, ‘No, that is not what the law says.’”
Pennsylvania child custody law outlines 16 factors that go into a judicial determination of custody rights based on finding what would be in the well-being and best interest of the child. Within these factors is one that takes into account a child’s “well-reasoned preference.” But the child’s wishes is only a factor in a custody case, not dispositive in itself, and is considered in light of their maturity and judgment.
Billies shares a story from early in her career to illustrate the rationale behind this custody decision law and some custody court orders:
“In one memorable case I worked on, the girl was 15 or 16, back when MySpace was popular. The dad lived out of state, and he found evidence in his daughter’s MySpace postings that she was hanging out with guys who were 19 years old and drinking. They showed in the custody trial that mom was trying to act like a friend, not like a parent, and exercising poor judgment. In that case, custody was transferred to dad, and the child had to move. Obviously, that was not the child’s preference, but it was in her best interest, and is an example of why preference can’t rule the day. Because why should a 12 year-old know what’s best for them?”
“No Fault” Means Exactly That
Another common misconception Billies sees regularly has to do with property distribution under no-fault divorce. “People think if someone cheated on them, abused them, was not good with money, that should really count for something in the division of property. And it just doesn’t.”
In a no-fault divorce there is no examination of the behavior of the parties related to the dissolution of their marriage. “When it comes time to divide up assets, I tell my clients to look at it as a dissolution of a business,” says Billies. “It’s a business transaction. That makes the emotional piece really different.”
Billies recommends working on emotional issues with a therapist or friend, while keeping the legal end of things more practical. This also helps keep the legal bill down, as fighting with your ex through your lawyer can be very costly.
Pennsylvania is an equitable distribution state, meaning that property between divorcing spouses is not divided evenly in half, but apportioned according to what a judge considers fair in light of factors such as relative income of each spouse, anticipated retirement income of each, duration of the marriage, and other factors deemed relevant (but not fault-related behavior).
Assets that were owned prior to the marriage or a gift or inheritance are generally not part of the marital estate.
Getting Legal Help
Prevalent misinformation can leave you with incorrect assumptions about your divorce or custody situation. Talk to an experienced family law attorney to make sure you have the best information and advice.
For more information on this area, see our overviews of family law, divorce, and mediation and collaborative law.
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