There are plenty of urban myths about divorce laws, but this one generally takes the cake. In Montana, judges in divorce cases never “let” a child decide which parent they want to live with. However, when considering and determining a parenting plan that is in the best interest of the minor child, judges consider a variety of factors, which may include the wishes of the child. See Montana Code Annotated § 40-4-212. Because the wishes of the child are only one of the factors, the judge may not rule the way the child wants if other factors indicate it may not be in their best interests. Imagine a scenario where a child wants to go live with a parent that has no rules and no curfew. Chances are a judge might find that, although the child desires that living situation, a more structured home environment would be in the child’s best interest.
Judges despise having children testify in court and they rarely allow it. They are very sensitive to children being pulled between parents in family law cases and forcing a child to “choose” can only complicate things for a child. Instead, a judge might appoint a professional to represent the child’s wishes in court. Examples of professionals used in Montana courts are therapists/counselors, an attorney for the child or a Guardian ad Litem (GAL). If a professional is appointed, they will meet with the child, perhaps even do a sort of investigation, and report their findings to the court. One of the downsides to involving professionals is that it often increases the cost of a divorce, as a therapist, attorney or counselor will need to be paid. Many jurisdictions have investigative services available at little to no cost. For example, in Flathead County, Montana, Family Court Services may be appointed by the court to investigate and report on the parenting situation.