For law class debate about "should children be allowed to choose which parent to live with after divorce"?

[Papa Bear]

As a 20 year fathers rights advocate, this is going to take a while to compose and it will be not be short. It also will not be liked by either mothers or fathers. Be back.

Here it is:

The debate over the rights of a child to choose which parent they want to live with during a custody dispute has been raging for decades. The questions it generates involve whether a child should have a choice and at what age do they possess the mental capabilities to make such a choice? But first, a review on the laws on this matter.

Only Texas has a law regarding the choice of the child that requires a judge to take it into consideration:

Child's Choice of Managing Conservator (custodial or primary residential parent)
If the child is 10 years of age or older, the child may, by writing filed with the court, choose the managing conservator, subject to the approval of the court. TEX.FAM.CODE ANN. § 153.008. The court retains discretion to determine whether to honor the child's choice. Further, in a non-jury trial the court may interview the child in chambers to determine the child's wishes as to conservatorship. TEX.FAM.CODE ANN. § 153.009. Upon the request of a party, the court must interview the child.

(Of note, only Texas allows the use of juries to decide custody)

In all other states, a child can express their opinion, but a judge is under no legal obligation to hear or see it, let alone take it into consideration. The presumption is that a child over the age of 12 can express their own choice, but that simply is not the fact. But, many judges do make that choice to hear what the child has to say. They decide on whether the child is mature enough to express an opinion, and whether that opinion is being influenced by a parent.

Now, a little human biology. According to studies, such as the one done by the University of Michigan and featured on the Discovery Health Channel program titled “The Amazing Life of the Human Brain”, a child’s brain does not BEGIN developing the ability for conceptual thought process until puberty or about age 12. Some develop this earlier, others later. Those with the longest life spans developed later.

From birth to age 2, with a few exceptions, does not possess a greater ability than that of most high order mammals. At this stage the human body is most concerned with growth and development of the immune system. Early development or forced early development of mental abilities can create a tradeoff of not having a fully developed immunal response system, leaving the body open to more diseases later in life.

At age 2, what is often call the “Terrible Twos” by most parents over the last 6000 years is really a time of miraculous change in the human brain. It is a time when we develop beyond that of other mammals on Earth. The brain begins developing the ability of long term memory storage through the creation of synaptic connectors and chemical bonds. Up to this time the brain is recoding less than one megabyte of data per second, going into permanent storage while sleeping. After age two this grows to 10 megabytes per second, mostly processed through the visual cortex. Consider how long it would take the largest computer storage device, such as a hard drive, in use today to fill up. The largest is a Petabyte, used for the super collider.

Petabytes in use
The Internet Archive contains almost 2 petabytes of data.
Google processes about 20 petabytes of data a day.
The 4 experiments in the Large Hadron Collider will produce about 15 petabytes of data per year, which will be distributed over the LHC Computing Grid.
Facebook has just over 1 petabyte of users' photos stored, translating into roughly 10 billion photos.
Isohunt has about 1.1 petabyte of files contained in torrents indexed globally.

Now, calculate how much the human brain is storing at the rate of 10Mgs per second, for an average 13 hour day. That’s nearly ½ a petabyte per day. A reminder here. All that data does not go into permanent storage until you go to sleep, whether you are a child or an old fart like me. It is one of the three major reason why humans should get proper sleep for at least 8 hours form those over the age of 30. More if under.

From there it takes 10 years to accumulate enough data for the brain to BEGIN developing the ability for conceptual thought process. This is when the brain begins sorting, comparing, and analyzing the data it has accumulated and is still accumulating for understanding such concepts as right from wrong, and love. This is also when more hormone production begins having a significant influence on desires and moods. This stage doesn’t reach completion until age 24 in women and age 30 in men.

The only reason men are declared adults at age 18 is because they can be drafted. But, they are drafted at that age because their brains are still so much mush making it easier to overcome the natural aversion to the taking of another human’s life. As they get older this becomes much more difficult, and impossible after age 25. Females are declared an adult at age 18 simply because the boys are, but without meeting the same requirements as the boys, which is ignored, and get a boy put into a federal prison.

Clearly, a child under the age of 12 does not possess the ability to conceptualize or weigh the benefits and negatives of making a choice as regards a custodial parent. Even at age 12, they are only beginning to develop these abilities and can be influenced by one parent or the other in their choice. Mothers find this much easier in that they can use their maternal attachment to make the child believe he/she must not love their mother if they don’t want to live with them. This can be devastating on a child and it is not an argument commonly used by fathers who think more from a logical perspective rather than emotional.

Ultimately, it comes down to the judge or jury to make this decision on what is in the best interest of the child, an area that is also highly debated. Alternate choices can be Joint Physical Custody, where a child spends 50% of their time with each parent, but this can prove problematic for the child, in moving back and worth, and even worse for a teenager who desires more independence from the parent(s) and seeing going back and worth as a major inconvenience.

The alternative is Bird Nest Custody. In this, the child lives in one home and the parents switch every 3-4 weeks. This can be highly inconvenient for the parents, though equally so, but for the children, their whole world remains the same and without disruption. But, it takes a very high degree of commitment on the part of the parents. This type of custody was successfully used by rocker Ted Nugent, and each state gets 3-5 such cases a year.

This has been long winded, but I hope it proves you with enough information to make an informed decision as regards children choosing which parent they want to live with.