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Does My Child Have A Say Regarding Which Parent to Live With?

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Child custody determines with which parent the child will live—called physical custody—and to which parent(s) will have the responsibility to make the major decisions in the child’s life—called legal custody. Physical custody can be joint—whereby the child is able to spend time with and live with both parents (one custodial and the other non-custodial with visitation rights)—or sole—the child lives with only one parent. Legal custody can also be joint—both parents make decisions for the child’s upbringing and wellbeing—or sole—only one parent makes these decisions. Most child custody agreements can be resolved without the assistance of the court and are agreed upon between the parents and their attorneys. However, in extreme or contentious cases, the court will need to get involved and the judge will make a final custody determination. Child custody disputes can be stressful experiences for the parents. But they can be equally—if not more—stressful for the children involved. Throughout custody proceedings, many parents wonder whether their child has a say at all regarding with which parent they prefer to live.

The short answer is: it depends. It depends on a variety of factors such as the age of the child and state law. Specifically, whether the child has a right to choose with which parent to live varies from state to state. Despite this, many believe that the child is able to understand and voice their opinion beginning at ages 12-14. Furthermore, it is important to note that every family situation is different. Children of the same age exhibit different maturity levels, which can complicate the decision of whether to let the child have an opinion regarding this issue.

Despite the common belief that children at a certain age have the mental capacity to make this decision, a minor child in reality does not have the right to make this decision and have it be final. Instead, the age of the child is merely a factor that the judge can take under consideration when making the decision of with which parent the child will reside—with older children’s opinions receiving greater weight. As an example, a seven-year-old in one case and a fourteen-year-old in another case may both be claiming that they want to stay with their father. The judge will weigh the fourteen-year old’s opinion more heavily.

Having a child be responsible for this decision can be dangerous and contrary to the best interests of the child—a standard that the judge must always seek to ensure. Consider the seven-year-old again. Suppose the seven-year old tells the judge that they want to live with their father because the father lets the child stay up late at night, eat ice cream for dinner, and skip homework and school on some occasions. Obviously, the child’s motivations are not in their best interests but are understandable for a child of tender years. The fourteen-year-old could pose the same dilemma for the judge. For instance, the fourteen-year-old could claim that they prefer to live with their mother because their mother gives them more responsibility to stay out late at night with their friends. The fourteen-year-old should obviously not be responsible for determining custody in these circumstances.

Aside from these realities, it is also very stressful to ask a child which parent they prefer. This question, in essence, asks the child which parent they love more—which can be very confusing and damaging to pose to a child. Therefore, this responsibility is better lodged with the parents and their attorneys, or the judge when the parents and attorneys cannot come to an amicable solution. In those latter cases, the judge will make custody determinations—physical and legal—based upon the best interests of the child. The judge as well as the assistance of experienced family law attorneys can decide what is best for the child.

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