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Weinberg & Schwartz , L.L.C. Motto
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How Old Does My Child Have to be to Decide Where They Will Live?

Any attorney who regularly practices family law has heard some version of the question: how old does my child have to be to decide which parent they will live with? The answer, not surprisingly, can depend very much on the circumstances facing the particular family. Ultimately, the child’s preference is one factor in the overall (and controlling) determination of what is in the child’s best interest. The extent of the impact that the child’s preference on the overall best interest determination can very significantly.

When a child has a preference between his or her parents and wants to live with (or spend more time with) with one parent over the other, that is one of the many factors that a judge or magistrate must consider when ordering or recommending a physical custody arrangement. But the court system is often very careful as to how a child’s preference is interpreted and rarely (if ever) will a judge or magistrate simply permit children to choose where or with whom they will live.

A simple example illustrates why a child’s preference is not, on its own, determinative of where and with whom that child should live. Most 10 year old children like to eat ice cream (they may LOVE to eat ice cream). If, after a separation, one parent allows a childwho likes to eat ice cream, to eat ice cream for lunch every day when that child is with the parent, the child could easily develop a preference for wanting to live with that parent. However, no reasonable adult would agree that the child’s desire to each ice cream for lunch on a daily basis justifies awarding that parent primary physical custody due to the child’s preference.

This example may seem silly, but the concept can be applied to more realistic and serious issues that commonly occur. What if one parent does not require the child to complete their homework? What if one parent places no limitations on screen time? What if one parent allows a teenager to stay out late and does not punish drinking or drug use? These are all scenarios where the child could develop a preference for a more lenient parent, but an objective adult likely would look at the situation and disagree that the child’s preference is consistent with the child’s best interest.

On the other end of the spectrum, a teenager’s preference as to where and with whom they reside can have a more significant impact the overall best interest determination. A teenager (sometimes with a growing sense of independence) with a strong preference to live with one parent or the other often might act out in rebellion to a schedule they don’t like, and do so in ways that are contrary to their best interest. If the child is running away because they don’t want to spend in one of their parents’ homes, that could suggest that a change to the schedule to address the child’s preference is in the child’s best interest.

When dealing with a child expressing a preference for one parent over the other in a divorce or separation, one needs to proceed carefully and thoroughly think through where the child is coming from. The natural tendency may be to support the child’s preference, but that process may be clouded by other emotions involved in a separation, divorce, or on-going custody matter. Before acting on a child’s preference, it may be wise to speak to the other parent, any counselor or therapist seeing the child, guidance counselors at school, or even an attorney.

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