Madonna and Guy Ritchie’s 15 year-old son Rocco made headlines recently after he decided that he wanted to live with his dad in London and then refused to return to see his mom in New York for the holidays. Madonna ran into court just before Christmas, where the judge ordered Rocco to be returned to New York so that his living situation could be sorted out. Apparently, even with the Court’s orders, Madonna has had no luck bringing Rocco back to New York even after flying to London and trying to reason with him. According to Guy’s attorney, Rocco will have his own court-appointed attorney at the next hearing which is reportedly scheduled in March.

Note that for purposes of this article, I speak of the case in the context of California law rather than New York law. California Family Code §3042(a) states, “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.” And, in California, as long as a child is at least 14 years old, the court must allow them to address the court regarding custody and/or visitation if the child wishes. This is true unless the court does not feel that it would be in the child’s best interest to do so, and the court must state the reasons for not allowing it on the record.

This statute was amended in 2010, put in effect in 2012, to include the language regarding children 14 years and older. Previously, the statute referred only to children of “sufficient age and capacity.” However, it is important to note that just because a child testifies regarding their preference to live with one parent or the other, it doesn’t mean that the court will disregard all the other facts and circumstances of the case. Rather, the court must just consider it along with the remainder of the circumstances. The court has to do a careful analysis to try and determine the basis for the child’s request and the weight the request should be given.

In Madonna’s case, we do not know why Rocco prefers to live with his dad. Madonna has claimed that Guy essentially has no rules and lets Rocco do whatever he wants, and that Rocco isn’t even enrolled in school at this time. Of course any normal teenager would prefer to live with the parent who allows for more freedom. This is why, even though the judge will likely take Rocco’s preference into consideration, the judge ultimately makes the decision regarding custody.

In the case of Mehlmauer, a 14-year-old boy testified as to his preference of living with his father, but the trial court did not grant his request. The father then appealed and the decision was upheld. Although decided over 40 years ago, the trial court was faced with what seems to be a very a similar scenario to Madonna and Rocco’s. The trial judge’s decision stated the following (which was also quoted in the appellate decision as justification for upholding the trial court’s ruling):

“Frankly, I just can’t give that much weight to a fourteen-year old boy’s statement that he would like to make a change. There is no—it’s true that the Code Section 4600 [now section 3042] says of a sufficient age and capacity and reason so as to form an intelligent preference, the court shall consider it and give it due weight. But, the Court has to look beyond this statement of a teenager and figure out where his best interests are. There is no question a fourteen-year old boy is in that age bracket when he is looking for two things at the same time, more freedom and he is looking for somebody to guide him at the same time. And just because he wants to make a change and get away from his mother and live with his father, I don’t think is a reason for the Court to make the change. I don’t feel bound at all by his testimony. I am not persuaded that his statement is supported by any mature objective reasoning as to why he wants to make a change…. I didn’t say I didn’t put any credence in what he said. I said I am not persuaded his preference was supported by any mature reasoning process. So that I don’t feel bound by what he says. I considered it. I don’t feel bound by it. I think the best interest requires that he remain with his mother at this time. I say that primarily because of a lack of showing by the person who bears the burden of proof, namely, the father, that his best interest requires the change. “

It remains to be seen whether Rocco will be able to present mature reasons for his desire to live with his dad in London. If Rocco were to testify, the court would take this into consideration, but would ultimately make orders that the court feels are in Rocco’s best interest. We will be waiting to hear the results of the March hearing.

March 3, 2016: update from Today Show on NBC:  http://www.today.com/video/judge-gives-warning-to-madonna-and-guy-ritchie-in-custody-battle-635834435732

Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

www.bickfordlaw.com