Child Custody: Where does the kid WANT to live?

Posted by & filed under Custody, Guardian ad litem.

If I had to name the question that comes up most often, it would be this one: how old does a child of divorced, separated or unmarried parents have to be to decide which parent the child wants to live with? In typical manner, the answer is not a simple one. There is no fixed age when a child celebrates a certain birthday and suddenly holds the trump card to influence a family court judge’s decision regarding child custody. It is safe to say that a 3-year-old is too young to decide. And a 17-year-old with car keys and an attitude can wield a certain amount of control over where they spend the night.

It is the ages in the interim that make things more complicated. At some point between age three and seventeen, most youngsters gains sufficient maturity to express to a guardian ad litem or custody evaluator a preference to live with one or the other parent. The guardian ad litem or custody evaluator may pass that information on to the family court judge if it believed to be sufficiently reliable and not based on the undue influence of the “preferred parent.” But that point in time is not the same for every child. Therefore, it is something that is considered on a case-by-case basis.

Moreover, in most cases, if the child expresses a reliable preference for one parent, there will be other factors that support placing the child in that parent’s custody. The family court might be informed that the child has such a preference, but also that the “preferred parent” provides the child with a more stable home environment, has a significant other or extended family members with whom the child has a good relationship, and/or is more inclined to support the child’s contact with the other parent.

That gives the family court impetus to award custody to the “preferred parent” without resorting to the child’s preference as a basis for the custody decision. Family court authorities and children’s therapists are loathe to place a custody decision on the shoulders of the subject child. A child custody arrangement is required by law to be based upon the child’s best interests as a whole, and if at all possible, the family court will avoid rendering a custody decision that can be said to be based primarily on the child’s preference.

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3 Responses to “Child Custody: Where does the kid WANT to live?”

  1. South Carolina Family Law Blog

    Another View of Children’s Preferences in Child Custody Cases

    I have previously written about how the Family Court considers a child’s preference in custody cases. On his new Minnesota Divorce and Family Law blog, Gerald Williams addressed this subject a few weeks ago, as follows:If I had to name…

  2. Michael

    Since both parents often want to maximize their time spent with the child, child custody battles can sometimes erupt into a very heated battle. These battles can have a heavy physical, emotional and financial burden on both a parent and …

  3. Karen

    My brother has 4 children, 2 from his first marriage and 2 from his last marriage. The first mother walked off and left them when they were very small. The current ex-wife has 3 of the 4 remaining children, 2 of which are unhappy living with their mother. She leaves them at home while she goes out drinking quite frequently. She has had quite a few boy friends and moved them into a home with total strangers where the 15 year old was molested by the man’s adult son who was also living in the home. She has physically abused both of the girls. Not sure about the boy. The oldest son now lives with his father, but stays with me a lot. The other children’s ages are b-10, g-13, and g-15. The girls want to go and live with the grandmother. Not sure about the boy. He is very young and I don’t think he understands what is going on. I would just like to know if there is anything I can do to help them become happier kids.

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