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Does My Child Get to Choose Where they Want to Live in Kansas or Missouri?

Child Custody

Missouri uses 8 factors when considering the custody of minor children which can be found here: Missouri Revisor of Statutes - Revised Statutes of Missouri, RSMo Section 452.375

Kansas uses18 factors when considering the custody of minor children which can be found here: Statute | Kansas State Legislature (kslegislature.org).

However, both states take into consideration the wishes or the desire of the children, in determining their custody. The Court will consider the child’s maturity, age, and judgment in considering the weight and credibility to give the child’s custody preference. There is no specific age at which a child’s preference becomes determinative.

In Babbit v. Babbit, the court acknowledged there was a long standing rule in custody proceedings, that if the child involved is of sufficient age to form and express “an intelligent custodial preference” the child should be allowed to do so, and the court must consider that preference along with the other facts and circumstances before it. Babbitt v. Babbitt, 15 S.W.3d 787, 789 (Mo. App. 2000). However, the desire of a child to live with one parent is entitled to some weight, but it is not decisive. Schmidt v. Schmidt, 591 S.W.2d 260, 262 (Mo.App. 1979). Further, the undisputed fact that the minor child wants to live with a certain parent is not a sufficient basis for the award of custody to that parent. Engler v. Engler, 455 S.W.2d 36, 41 (Mo.App. 1970). Courts are required to consider all of the factors involved.

There have been a number of studies regarding a child’s wishes in custody proceedings. One study by Frans Mashilo Mahlobogwane determined that the child’s perspective should not be the deciding factor, but it should be considered seriously. Frans Mashilo Mahlobogwane, Determining the Best Interest of the Child in Custody Battles: Should a Child’s Voice be Considered?, 31 Obiter 232, 245 (2010). Mahlobogwane went on to state that “Decisions that are made about children’s futures, should be made in consultation with children themselves, for they are the ones who have to live with those decisions.” He is not the other scholar that believes this is true. An empirical study by Barbara A. Attwood states that “Legal recognition of children’s rights and our improved understanding of child psychology strongly support the conclusion that family courts should take into account the views of children able and willing to express them.” Barbara A. Attwood, The Child’s Voice in Custody Litigation: An Empircal Survery and Suggestions for Reform, 45 Ariz. L. Rev. 629, 674 (2003).

Ultimately, the court will always put the child’s best interests first. Even if the child expresses a preference, the Court can determine that other factors outweigh this wish. Wennihan v. Wennihan, 452 S.W.3d 723, 734 (Mo. App. 2015). However, you want a lawyer that is going to listen and understand your child’s wishes and advocate for those. The attorneys at Pingel Family Law Firm will do just that.

If you believe a custody case is necessary and you want the court to understand and consider the wishes of the children in going through the custody process, call Pingel Family Law today at (816) 208-8130 to schedule your consultation.

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