Can a Child Choose Which Parent to Live With in Child Custody?

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How much weight does a a child's wishes play in a custody case. Can they choose which parent to live with once they reach a certain age?*

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*This video recording is for educational purposes only and should not be considered as the rendering of legal advice. The viewing of this recording does not create an attorney-client relationship. An attorney-client relationship is only formed when you have signed an engagement agreement. We cannot guarantee results. Past results do not guarantee future results. Consult with a licensed attorney for information regarding the specifics of your case.

This is one of most asked questions I receive as a divorce and custody attorney. Can a child choose custody?

Most people think that once a child reaches a certain age, say 12, 13, 14, 15 or 18 they can make that call, and that's just not the case. However, a child's wishes is one factor the judge will take a look at when deciding which parent will get full custody of the child.

But the child's wishes, alone, does not determine where the child lives. A judge is required to look at all of the other best interest factors and how they interplay with what the child wants.

So, how old does a child have to be before a judge will consider what the child wants. The answer is not a one size fits all answer. Really what the answer is when a child is a sufficient maturity to express what he or she wants. Different judges have different cut off ages. For example one judge may allow a child 6 or 7 years old while another judge will say that is too young and set the age at at least 9 or 10 before the judge will consider their wishes.

So it really depends on your judge and your child's ability to express themselves about their wishes and the reasons why they want to live with one parent over the other.

Another questions I get is how to do we present the child's wishes to the court? Does my child have to go to custody court and testify? The answer is most of the time, No, a child does not have to testify. If a child were to testify it puts the child in a bad position as it puts pressure on them because they think they are the final decision maker.

So what judges do in these situations, commonly, is they have a third party interview, someone who is qualified such as a psychiatrist, psychologist, social worker or a court appointed attorney and this person interviews the child. And they interview the child in a way that they don't feel like they are being pressured or that they get to choose the parent.

The professional will try and build a rapport with the child and find out what's going on at Mom or Dad's house, and then this third party prepares a report that is provided to the judge or maybe provided to both attorneys of the parties or just the parties if they are not represented by a lawyer. It depends if the report is confidential or non-confidential.

So the judge in making the decision and weighing all the different best interest factors is going to look at this report. So the takeaway is, if you have a child that wants to live with you or with the other parent you should know that the child's wishes alone are not going to carry the day. The child does not get to choose custody. There are best interest factors that apply in every state so wherever you are, become familiar with your state's statutes and the best interest factors that apply and pay attention to all of them and not just one.

Wendy Hernandez is a family law attorney in Phoenix, AZ and founder of Command the Courtroom which teaches you how to handle yourself in court and achieve the best outcome when representing yourself in your divorce or child custody case.

Download my FREE ‘Child’s Best Interest Checklist’ at http://www.commandthecourtroom.com

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