When Age Matters in a Family Law Proceeding: Age, Health and Children

By Cara L. Boroda,  Esq.
Van Oorschot Law Group PC

Sometimes, age is more than just a number in a family law proceeding. 

Spending one’s golden years, when also ill, embroiled in litigation is a terrible way to spend one’s days.  Thankfully, the law is understanding of this situation and may allow for an earlier trial date. 

On the other end of the spectrum of one’s lifespan, in a custody or visitation proceeding, the age of a child may, under certain circumstances, allow a child to tell the judge his or her preference about custody thereby assisting the court in its decision of custody. 

A Party’s Age and Health Can Expedite a Trial Date

In a family law proceeding, where all parties have a substantial interest in the proceeding, if a party is over 70 years of age, and the health of the party is such that a preference is necessary to prevent prejudice of the party’s interest in litigation, a party may ask the court for preference in scheduling their matter for trial thereby expediting resolution. 

Additionally, a court may, in its discretion, grant a motion for preference if it concludes that one of the parties (even if not 70 years of age) suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months. 

The family law courts are busy and often backlogged, which makes a motion for preference based on the age, as well as health, of a party to be a great advantage. 

However, parties must be aware that if the preference motion is indeed granted, that means there will be less time to prepare the case for trial and conduct the necessary discovery that may be essential for the trial. Therefore, before filing a motion for preference, consider factors outside the age and health of the party, to ensure that the motion for preference is indeed in the best interests of the party.

A Child, Under Certain Circumstances, May Address the Court Regarding Custody and Visitation
We all know that children, like it or not, are squarely in the middle of a divorce.  While most parents work hard to jointly make decisions best for their children, not all agree on what is best and often children have a strong opinion about where they will be spending their time. The law recognizes this and provides a possible avenue for children to state their preference about where they spend their time. 

The law currently provides that unless the court finds that it is not in the child’s best interests, a child who is 14 years of age or older shall be permitted to address the court regarding custody and visitation.  The court, in its discretion, may also hear from a child who is younger than 14 years of age if the court determines that the child is of sufficient age and capacity to reason as to form an intelligent preference as to custody or visitation. 

While some parents may feel that it is important for the child to address the court and voice their preference as to custody and visitation, anytime a child physically enters the courtroom, a parent (or parents) must seriously consider the advantages and disadvantages of allowing their child to become that embroiled in the family law proceeding. 

Conclusion

A party’s age and health may be a pivotal, as well as a strategic issue, in a case. However, like all litigation matters, the decision to move forward with a motion for preference or the decision to have a child testify in a custody or visitation matter must be carefully reviewed in light of all relevant facts and issues in a case.