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We are talking about probably one of the questions I get if it's not the most, it's pretty close and maybe my least favorite, which is when can my kids decide who they wanna go with?

What age do kids get autonomy? So let's delve into that. 

This is from Pennsylvania specifically, but I have a feeling we're also gonna talk about the developmental ability for kids to be thinking about this.

I imagine custody has got to be pretty similar. Nationwide. This is not something that you wanna go rogue on. It's the future of , our society. But in Pennsylvania, there are 16 factors under the basic custody statute that are addressed with the court.

One of them is the child's preference. Now here's the key, based on their age and maturity, and it's one of 16. So let's start with the answer is your kids can never decide [00:01:00] and be , the final say, and nor should they. I tell people all the time, your child should not have to choose between you or the other person.

That's wrong. You, have made this person, this person is half you and half that other person, and they need to think the best of both of you. And so when you put a child in the middle, that is putting them in a terrible spot. And frankly, , you're not being a good parent by doing it.

You can all hate me for saying it, but if you wanna put your kid in the middle and have them pick, you're the problem. So let's start with that. And the courts are gonna flush that out. Courts know oh my God, they will walk in, they be in the judges and they will say, I talked to Jenny. And it was very clear that you, mom or dad have talked to Jenny about this.

I've had judges put in a footnote that a person, not my client, made a child a litigant. And it was the most scathing footnote I've ever seen. I've had a judge get back from talking to a kid and said, this is what the child said. And if you retaliate. To mom in this case against this child.

For what [00:02:00] they told me, I will come outta retirement and haunt you. The judge, I kid you not, I have the transcript. The judges do not want these kids in the middle. My default is the kids do not come. These kids need to be kids. They need you as the parents to figure this out. However, sometimes, sometimes it's appropriate.

So what I generally tell people is the court will listen. To a very mature 10-year-old with the caveat I've put in there that hasn't been put in the middle. It's pretty clear that they have, they have their own independent feelings. So a very mature 10-year-old who comes in here without a parent having their agenda pushed on them, may not shall, may be listened to more than an immature 16-year-old.

You get an immature 16-year-old who is uch assault and I want what I want and I want it now. They might not get as far as a mature 10-year-old, and it's only a small part of the way the court makes their determination. Period. It is [00:03:00] not their decision. Their call. And the judges will tell kids when they do have to speak to them.

This is not your call, this is my call. This is not on you. And kids want it off their shoulders. And if the kids tell you, I don't wanna be with mom or dad, guess what? They're probably telling the other person the exact same thing, because your kids wanna please you. The kids know what you wanna hear, and when they figure it out, they're gonna say it to you.

It does not mean it's true.

So you

I'm fired up about this?

Yes. I can tell this is another Julie's fired up episode. Sure. All right, well I think we all probably remember being 16, 17, 18, and.

hating

everything and wanting to just be contrarian. Maybe not all of us, but a lot of us we're contrarian to some extent. What happens when you have a kid, whether justified or not, just does not want to go to the other parent's house.

, babies, you can pick 'em up and put 'em in their car seat, 16, 17, 18-year-old, they're out driving, they have jobs, they're going to school. Like how do you force them at that point to kind of follow their own custody?

So when you get to 16, [00:04:00] 17, I usually tell people, even if the custody order is black and white, we are going to work in language to give the kids a little bit more autonomy. For example, and I just said this to a client, he actually should have a custody order.

He's a afraid, for lack of a better word, to get one, because he doesn't wanna start a fight and his kid is maybe 16 and a half. And I've said, look, you can always be reasonable. You can always say, Jenny, you can go to the football game on Friday night and I'll pick you up later.

But if you don't have that time to find, then there's nothing for you to enforce. So, the kids, yes, they should have some. Flexibility, for lack of a better term, but they're not gonna have autonomy at older years. I've had a case, one of the hearing officers in Chester County who does contempt.

I love him. He cracks me up in many ways. Hope that you take this the best way. But he doesn't have kids. And I say that because sometimes when people don't have kids, they don't have the same [00:05:00] perspective as those who have kids. But I had a case kid was 12 or 13. Not really legitimately, but kind of legitimately didn't wanna go to mom's.

I represented dad and kid was probably bigger than me and, the hearing officer said like, what are you doing to encourage the child to be there? So that's where that part comes in. And I don't think he was wrong here, he's probably more of a authoritarian type person, but he basically said, well, what was the consequence that you gave that child?

Because they didn't go with mom and. Honestly, that was , , the question the court had, and I don't even recall if he found my client in contempt, nor was that the point. But I think the point is what are you doing to encourage that relationship? What are you doing to ensure that that child knows how important it is to go to that other parent?

Is the kid like, I don't wanna go. And you're just , oh, okay, you don't have to. Or are they saying, I don't wanna go? And you're like, too bad. That's your mother. You have to spend time with her and if you don't, there's gonna be consequences.

[00:06:00] That's exactly right.

That's what the courts are gonna look for. And here's what I tell people all the time when they're like, well, Bobby doesn't wanna go to mom's or dad's. I'm like, , my kids didn't wanna brush their teeth at one point. That does not mean I let them, , Kieran wants this stupid dirt bike and Okay, yeah, he wants a lot of things.

Doesn't mean he gets it. Point being is. You are the parent. I

I mean, you have them in all these sports that they love, and there's still days where they're like, I don't want to go, or I wanna quit, or , I don't wanna do this anymore because for whatever. Reason they're kids,

Right. So

that doesn't always mean it's a bad thing.

They're just, for whatever reason, they're just saying that.

Well, and when you're in a situation where you're potentially either or divorcing, it's not uncommon for people to want to feel like the kids are on their side. The kids. And the best of situations should have no idea what is happening except for a change in where they sleep.

At night, sometimes , your job as the parent is to insulate them from the conflict , I always feel worse for the only children when they only have one kid. 'cause the weight of those parents is so much on [00:07:00] them. I've met these kids and 

, I can feel the palpable tension they feel being pulled between. And I think that is an important thing to recognize. Most parents aren't doing it 'cause they have ill intent, let me be clear. Most parents aren't out there going, I want to hurt my child.

Of course not. But what I don't think they are seeing in the moment is that they are. Hurting their child, they're hurting their child's relationship with that person as well as the other person. It's very important to remember that you've gotta keep your kids out of it. They're not your friend.

They're not your parent. Don't purify your kids. So it's probably when you have to be a heightened sensitivity to your parenting role as opposed to the opposite.

Okay, so you mentioned these 16 factors, and this is one piece of it. So you have like the parents are giving input, the judge is looking at it, and you might have therapists, you might have third parties. The attorneys are giving input. , it just seems like sixteen's a lot.

So how does that all get kind of weighed and then who gets [00:08:00] to ultimately make the decision? I.

The fact finder's the one who makes the decision. So if you're dealing with the first level hearing officer, which is less common in Chester County. With the changes of our rules, but so you can itemize each factor, they're not always relevant, . Drug and alcohol issues are not always relevant.

History of physical or emotional abuse, et cetera, might not be relevant. Proximity of the parties might not be an issue. They might live five minutes apart. So let's say a quarter are not relevant, another quarter they might be equal, right? , both parties might be able to 

plan for the kids' childcare. Both parties may have extended family in the area, so they're not really getting anywhere on either side. And then usually, let's just say there's 4, 5, 6 that really are the crux of what the court has to decide. And so your job as the lawyer, , in a conference where it's a hearing officer and no testimony is to make the argument that hits on those points and why your position is the correct one.

And then the other side has their turn. Where you're gonna see , the true due process is in a trial [00:09:00] and a trial. The judge is the one who hears, and our job as the attorneys is to bring in , our witnesses to point out those factors most judges only really wanna hear from mom and dad, period.

Most judges really don't wanna bring the kids in if they don't have to. Then the next step could be like stepparents or significant others. The courts almost always wanna hear from significant others. Generally speaking, they're the ones who give more clarity in a way because they're there without the same amount of.

Stake in the issue. I have a case that is pending trial. The lawyer on the other side put 22 fucking witnesses it was preposterous, preposterous. , they've already whittled it down and the judge was very clear that that's not happening. If someone puts a child's therapist on there, I object.

Because it's gonna affect and, hurt the relationship between the child and their therapist. If that therapist comes in and has to talk about what the child says, that's a whole nother issue. So I usually try to get those out and the [00:10:00] courts support that. They don't wanna alienate the child from that relationship.

Schools, you try to subpoena a teacher or guidance counselor, the solicitor's gonna quash that subpoena. They don't wanna get in the middle or they're gonna try. Usually what you're gonna hear from our mom and dad, usually a significant other, if there is one, oftentimes a grandparent, which is as helpful as.

I don't know nothing because we all know they're gonna say that Johnny is a great dad to Bobby and vice versa. So while those are fine, they're not gonna really get anywhere and truly think of it as the scales of, of justice. If you get testimony about a, a prior crime.

Recently committed that affects the person's mental health or whatever. That's gonna be a really big rock that they're gonna put on that one person. On the flip side, there might be 10 rocks that build up to, to adjust those weights. So what the court will say often is, it's about how much I give weight to that issue.

So the court is gonna hear from these witnesses and documents, text messages. I will die reading [00:11:00] people's text messages usually. I try to limit those. The court's gonna read those because the text messages show. If someone's like, I am so reasonable. And then you have a text when the person says, fuck you, motherfucker, are you fucking cunt?

I'm like, they don't think you're so reasonable, are you? Right? But all that to be said is the court's gonna hear it and they're gonna make a decision based on. The factors. And again, it's all subjective. So what one judge might decide might be different than the other one. And that goes back to why you should hire attorneys in your county.

'cause you know the audience, I know the audience when it comes to, one judge versus the other. And while they won't necessarily be all that different, I know one of the judges was a former da, so I know how that person is thinking as opposed to another judge who went through a divorce.

So they have their own perspective of what, so it just depends. And it doesn't mean that they're right or wrong, but everybody walks into that role as a fact finder, the decision maker with their own history. So you have to know that when you walk into that courtroom

What happens if the judge or whoever makes the decision and you strongly [00:12:00] don't agree with it? Is it an appeal situation? How do. Does that work in family court?

So once a judge makes a decision. And issues an order, and the judge in Pennsylvania has to delineate the factors and , how they weighed them. You in Pennsylvania have the automatic right to appeal in superior court.

What you do is you file notice of appeal and what the issues you say are wrong. The judge has to issue the opinion as to why they did what they did, and then you take all the steps through the appellate process to get it in front of the superior court so the superior court has to hear your case.

That's what I mean by an automatic right to appeal. And, superior courts they're reviewing, they're not a new trial. It's not de novo. They're limited to saying that a judge abused their discretion evidence that was admitted.

That shouldn't have been. However, your attorney has to have objected. So in other words. You can't say that this hearsay shouldn't have come in if your attorney didn't object. If your attorney doesn't object to that hearsay, then it's waived. This is why your attorney should know the rules of evidence and good God so many attorneys don't.

So you can't just say , well, now I don't like the decision, so now I'm going back and arguing

you can and [00:13:00] that's gonna say they abuse their discretion. But you gotta say how right. , so the superior court, you say what you think the court did wrong and the superior court will make their decision.

You file briefs in Pennsylvania, children's cases are on a child's fast track. So they get heard faster and your attorney can or cannot choose to do oral argument in front of the superior court. You can do five minutes, you can do 15 minutes each, and then they issue their decision. If you don't like that decision, then you can.

Request the Supreme Court to take your appeal grant Otter, but they don't have to. The Supreme Court of Pennsylvania gets to pick and choose. But Superior Court has to hear your case.

My best suggestion is typically to live with it. I

I was gonna ask, how often does this happen that the appeal gets. Up to the Superior Court

In family court I've had one case that was appealed from a trial.

And my client won, and I must've been way too convincing because the Superior Court said that the judge abused their discretion. [00:14:00] So that sucked for my client. I got the trial court to do what we wanted to do, but the superior court, in my opinion, sorry, judges wrongly overturned my judge.

So in that case, your client won the other side appeal. It, it went up to Superior Court and then the other side won then because they said that they,

Right. My client wanted the trial court, the other side wanted to. The Superior Court because the Superior Court said the judge abused their discretion.

That's why I joke and say I was way too convincing because I got the judge to grant what we were looking for, which was hard. However. So Superior court is not on bonk. On bonk is means every single judge is hearing it. So usually there's a three court panel and you don't know who you're gonna get.

And in that case, I remember my friend is a superior court judge, so at first we didn't notice it and then I was like, oh shit. She can't hear my case. And then of course I have guilt because I'm like, what if she was on there? Would it have been different?

But, those are the things I can't control. Anyway, one other case, they tried to appeal an order which was considered [00:15:00] interlocutory, you can only appeal a final order. Interlocutory means it's not final yet. So the Superior Court , kicked it and said it's interlocutory.

And that case is still pending trial. So whether or not that case will eventually be appealed on the merits is to be determined. So all that to be said is, it's not very common.

Well, we're all learning a lot about our court system these days and

yeah, so by the way, it is by the way, you need to listen to court orders.

Everybody in particular, the United States Supreme Court, they're pretty important. That's what checks and balances are for You

not go against any court, let alone the Supreme Court. That's crazy.

Well, you have to be crazy to going into Supreme Court, so we'll see. We'll see. Anyway, you don't always have to like the decision using the case that my client lost, but you have to respect it because that's what they're there for.

If you. Don't protect someone's rights, whatever that right is their right to custody, their right to search and seizure their right. To be, 

not deported, due process applies to every person, not citizen, not a person. We want to have [00:16:00] due process. Due process applies to everybody, and if you don't protect the due process rights of one person, you are jeopardizing the due process rights of every single person in the United States because it suddenly can turn to you as the person who has lost their due process.

So that is a slippery slope that must be protected and. , our courts have always helped our country, and God willing, they continue to do so

Well, I hope we listen back to this in a couple years and we're pleasantly surprised

and Josh Shapiro is our president and all is all is all is moderate in the world.

I don't want anything but modesty. Boring. Boring. I don't politics

that are so boring. I don't want to listen to them.

miss. The idea of John McCain. I voted it for Obama, but my God, I would kill for John McCain or a bush. Give me a bush, any of the bushes.

I mean, he was funny at least, and caught the shoe and it was thrown at him and, you know,

they were, they're good people who want our [00:17:00] country to be good and, and the best place to be.

And I, I really miss modesty and I miss,

I think that's the key.

Good people, right? And not to be like political, but , of course you're never gonna agree on politics on both sides. And you might totally disagree on almost a hundred percent, but if there're being a good person and empathetic person 

Well, I can tell you I've disagreed with plenty of people in politics, but I understood where they were coming from as opposed to. Wondering what fucking planet we're on. Like, let's just use like taxes. Like I get, people don't wanna pay taxes. I pay a shit ton of taxes. Trust me. I don't like paying taxes.

I pay all the taxes because it's my obligation and I recognize that my government is looking out for the best interest of our country, and that might not be what I wanna spend the money on. And oh, by the way, my social liberties are protected and that's more important to me. So. Look, I can't agree that I don't wanna pay taxes.

I can't agree that they should cut social parts, but I can understand someone's position that's [00:18:00] different than due process and where do I even begin? So all that should be said

Anyway,

courts are important. Listen

yeah, courts are important. Listen to them. Politics are crazy right now. Let's wrap this up. One more bullet and then you can bullet point, not an

bullet. Okay.

who knows these days. So wrap it up with what do you feel like autonomy looks like in shared custody and how can parents give space without losing control

Who are they given space to?

I'm thinking definitely teenage probably more in that 14 to 18, maybe even 16 to 18, those older kids who need the independence, but they're in this shared custody situation,

So it's gonna start well before the custody situation. It has to start. When you have these children, you need to support the other parent from the get go. If you are in a household where you are being undermined or you are undermining, it's not gonna get any better.

That's why I always say marry someone, you'd be okay divorcing, [00:19:00] because if someone's a dick when you're dating or married, they're only gonna get to be a bigger dick when you're divorcing. But that goes back to like the autonomy. You want your kids to think the best of both of you and respect both of you.

You can't just make a 180 when you're getting a divorce, so it starts the beginning. If the dad says no to the candy, even if you think that's stupid, you gotta support the no to the candy. The mom says no to the tv. Even though you're like, for the love of God, I wanna watch tv, you gotta support. It doesn't mean you have to agree with that person.

You can talk behind the scenes, Hey, I think that was unreasonable, but it starts from the beginning. You have to respect each other. It has to come down to respect. And if you don't do it while you're intact, it's not gonna get any easier when you're not. However, if you're not. 

If you were talking to somebody else, what advice would you give them? So if, if you are giving advice to somebody, would you tell them to do what you're doing? Probably not Think about your kid in 20 years and the kid's saying, God, you really made me mad at Dad because, do you wanna hear that?

No. You want your kid to be like. I can't believe how, how [00:20:00] well you handle that. Thanks for doing that. So think about, you know, pause, take a deep breath, count to 10. Think about what your future self is gonna hear from your kids, what you would give advice to somebody else. And the the best advice I can give anybody in a divorce, and , I've been giving this one a lot, I get my isms, is when you go through a divorce or you're going through custody, just be prepared to always be the bigger person.

Always just be the bigger person. You don't have to be right. Just be the bigger person. And when you have that as your mantra, then you're always gonna win. . Even if you feel like in that moment you're not. 'cause when you're the bigger person, at the end of the day, your relationship with that child is gonna be better for it.

So that's my best advice.

And teenagers will teenage.

The

Always

People will talk like about going through sides, like they'll do it when you're in the same house. Point being one will come to me and be like, oh, dad said I could.

And the other one [00:21:00] will be like, oh mom. And. They'll do it when you're in the same house. So if you're in two separate households, it gets even worse. So you gotta know that. You gotta know that like they're gonna play against each other in the best of households and in the worst of households. And if you guys are not aligned, it's only gonna get worse, and you're gonna create very entitled, very manipulative people.

These kids can become exceptionally manipulative adults when they're manipulating their parents and playing 'em against each other. You're only hurting your kids. You're, you might feel like you're winning in the short term, but your kid 30 years from now is gonna be a lot worse off if you keep doing what you're doing.

Yeah. 'cause they're, they're learning what they can get away with.

It's normal. It's good to see that. But when you're in different households you have to, well, and let

well, and let me, let me together.

Let me give a little tip for every parent. And I learned it myself as a kid. Your kids want boundaries. They want 'em, they need you to say no. They need you to give them those boundaries. It sucks, but you're not here to be their friend. So those boundaries apply when it's against the other parent.

And they wanna know that you're a united front, [00:22:00] that they need to know that that gives them that foundation. And if you give them a split foundation, now you're creating a person who is gonna have their own mental health issues. Talk to therapists about what happens when kids are in the middle of contentious divorces and what they see now with these adults.

And I assure you, you're gonna wanna avoid that. Not one therapist you can talk to is gonna say, this person went through a really crappy childhood and, and divorce, but they're, they're fine just because of whatever. They're not. , if they're fine, that's 'cause they worked on it. But no, no therapist is gonna say that's good for anybody, period.

These kids didn't choose it, this is what you did to them, so your job is to make it less on them, not worse.

Well, that's a good place to end.

So yeah, thanks so much for listening. As a reminder, if you enjoyed this episode, please subscribe. Leave a five star review. If you wanna get in touch with us, shoot us an email lawyer, Julie fifty5@gmail.com. Send us any feedback or suggestions and we will talk to you next time.

Sounds good. Thanks Tim.

Bye bye.

bye.