In Oregon, children rarely have an attorney, except in juvenile cases. In juvenile cases, a child’s attorney is appointed by the court. In any other litigation (divorce, custody, parenting time, guardianship, etc.), children do not typically have an attorney representing them. If a parent would like to hire an attorney to represent their children, they are certainly welcome to do so. This is highly unusual. If a judge believes an attorney should be appointed to represent the children, the judge can appoint an attorney and charge the parties for the attorney’s services. This is also highly unusual.
The information in regard to the children’s preferences typically comes to an attorney through the parent that is the attorney’s client. I recommend against asking a child their preference. Children should not be placed in a position of feeling as if they have to choose between their parents. This can be psychologically traumatizing to a child, who may want to please both parents, who will carry the burden of that choice for many years to come, and who probably does not really comprehend what is in the child’s own best interest. The information should be obtained carefully by listening to information provided by the child and gaining a sense of what the child prefers in terms of spending time with each parent. Having a child attend counseling for purposes of assisting the child in adjusting to the separation of the child’s parents can assist a party in identifying the child’s needs and desires.
If the child is determined to express his/her opinion in regard to custody or parenting time, a judge will usually listen to what the child has to say. In Oregon, there is no age at which a child is too young to testify in court (within reason). In Oregon, there is no age at which a child can absolutely choose which parent they prefer and what schedule they prefer. The law always requires a judge to decide what is in the “best interest” of a child, no matter how old that minor might be. Having said that, when a child is a teenager, judge’s will most often follow the request of the child.
Lance D Youd is a divorce attorney in Salem, Oregon.