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Part IV
Advanced Applications of Theory to Family Law Practice
14. In the late nineteenth century, “infant” referred to “
…
the status of one
who has not attained his majority, or full age of legal capacity, and is
synonymous with minority and non-age” (Hochheimer, 1985, p.1).
15. I am aware that New Hampshire also recognizes the mature minor’s
standing under RSA 461-A:6, II. See
In the Matter of Richard L. Stapleford
and Cheryl Stapleford
(Supreme Court of New Hampshire, 931 A.2d 1199
[2007]) for a unique application of this standard.
16. A post-hoc statistical analysis of 272 custody outcomes found that coun-
selor recommendations were the best predictors of custodial decisions,
but that, in lieu of counselor recommendations, children’s preferences
were the best predictors (Kunin, Ebbesen & Konecni, 1992).
17. In
Wisconsin v. Yoder
, (page 42, 406 U.S. 205, 246 [1972]), the United States
Supreme Court comments that “[c]hildren far younger than the 14- and
15-year-olds
…
are regularly permitted to testify in custody and other pro-
ceedings. Indeed, the failure to call the affected child in a custody hearing
is often reversible error. See, e. g.,
Callicott v. Callicott
, 364 S. W. 2d 455
(Civ. App. Tex.) (reversible error for trial judge to refuse to hear testimony
of eight-year-old in custody battle). Moreover, there is substantial
agreement among child psychologists and sociologists that the moral and
intellectual maturity of the 14-year-old approaches that of the adult.”
18. Section 39(1); the entire act is available online at: http://74.125.47.132/
search?q=cache:exQlDO8upYMJ:www.law.yale.edu/RCW/rcw/
jurisdictions/euron/finland/Fin_Ch_Cust_Act_Eng.doc+Finn
ish+Child+Custody+and+Right+of+Access+Decree&hl=en&ct=clnk&
cd=3&g l=us
19. See http://www.opsi.gov.uk/acts/acts1989/ukpga_19890041_en_1 for
the full text.
20. These other variables would certainly include how and by whom the
child’s custodial preference is elicited, if and how the custodial outcome
is attributed to/congruent with the child’s preference, and how each
parent responds to learning the child’s expressed preference.
21. One might argue that angry, self-involved parents who contest custody
are unlikely to have provided their children with the emotional security
necessary to achieve a “mature minor” status. This creates a paradox in
that the children most likely to qualify for “mature minor” status are also
the children least likely to need to exercise the associated custodial
discretion.
22. On the other hand, perhaps minimum socioemotional criteria should be
adopted to assure that the experience isn’t traumatic; or perhaps certain
maximum
cognitive developmental criteria should be established to pre-
clude a full understanding of how fragile amusement park rides can be!
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