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ASK THE JUDGE

Child's Views on Parents Visitation Rights Weighed

October 28, 1989|B. TAM NOMOTO

Q. I am divorced and have two teen-age sons, ages 15 and 16, who are doing very well academically and socially with both peers and adults. The oldest is working and driving his own car. They have had a rocky time with their father over the past five years.

Recently, I was served with papers to increase their father's visitation rights. Neither of the boys want to see their father more often. Should the boys go to court on the date set for hearing, and how can these orders be enforced with such independent young adults?

SH,

Costa Mesa

A. Your question is one that is frequently asked. Your sons should be present at the hearing because the court is required to consider the wishes of a child and give it "due weight" if the child is of "sufficient age and capacity to reason so as to form an intelligent preference as to custody."

There is no magic age as to when a child will be considered capable of making such an intelligent decision. Generally, the older the child, the more weight will be given to his wishes, although this is not a fast rule.

Your sons, however, being 15 and 16 years of age, are old enough that they should be able to articulate their feelings and desires to the court. Generally, most courts would consider the wishes of children their age very seriously.

Q. I am a divorced man and am living with my girlfriend. We have an agreement that all expenses such as rent and food are shared equally.

My ex-wife heard about this and has now threatened to ask the court to raise the amount of child support I pay for our child. She says that since I am saving money by having a roommate, I should pay more to her for our child. Does this make sense?

P.C.,

Tustin

A. The law shares her point of view, agreeing that if a non-marital partner is contributing to your living expenses, that person's income must be considered to the extent that it reduces those expenses. The reasoning behind this is that since your expenses have been reduced, you therefore have more money to spend on your child.

B. Tam Nomoto, an Orange County Municipal Court judge, answers readers' questions about the law. Ask the Judge runs every other Saturday in Orange County Life.

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