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When Can Kids Decide Who to Live with During a Divorce?

The judge or mediator’s responsibility is to determine the best interest of the child or children in any case. In some cases, and states, judges will consider the requests of the child.

There is a common misconception that around the ages of 12-14, children get to choose which parent will get primary custody. While this does occur in some scenarios, these are situational, and location-specific incidences that are not the standard for most cases.

In some states, courts allow children who are 14 or older to choose where they want to live. In Georgia, children have the right to choose their custodial parent. At the same time, in states like Alabama, the judge may consider the desires of the child if they are “of sufficient age and maturity.”

After a two-year study by the Elkin’s Family Law Task ForceCalifornia created a law that requires the court to “consider and give due weight to the wishes of the child” and allows children over 14 years of age to be able to do so to testify in custody hearings.

In Florida, parents and attorneys cannot require children to testify; However, kids can share their thoughts in cases when their testimony is required to make a decision or in the case of an emergency.

The judge or mediator’s responsibility is to determine the best interest of the child or children in any case. The decisions made by family law professionals can be different than the child’s perspective or the desires of the parents because judges consider a wide range of information in deciding custody cases.

Mother and children walking


Best Interest of the Child

In the U.S. and around the world, judges aim to create custody orders in the  child’s best interest. While this may include the child’s opinion or preferences, the judge can also consider, among many factors:

  • The existing relationship between parents and child
  • The health and mental wellness of the parents and children
  • Any history of domestic violence or abuse
  • The child’s age and needs
  • The ability of each parent to give the child a safe and healthy home
  • Financial Stability

Additional Considerations

While allowing children to voice their opinions and to consider their preferences enables them to have a potential impact on a custody order, many child psychologists believe there can be consequences to this involvement. Some psychologists discourage children from picking between parents, as it can impact cases of parental alienation. If a parent believes that parental alienation is occurring or that the other parent is manipulating the child, that parent should contact their attorney.

In addition, there are factors other than the relationship between the parent and child that can impact a child’s decision about which parent they want to live with. For example, a child may prefer the home of one parent because it is larger or the rules in that parent’s household are more lenient.

It is up to the court to use the information and evidence to make sure that kids are making decisions that are based on their best interest and are not rebelling against one parent.

Child smiling at parents


Helping Kids Prepare

If your child is preparing to testify in court or to speak to a judge about their custody preferences, it is important that you help them understand that their statements will not determine the outcome of the case with any certainty. They should prepare for multiple custody agreement possibilities, and many family law professionals discourage parents from making promises one way or another.

Your child may be interviewed in a judge’s office or another setting, depending on the case. A judge will likely ask questions regarding the child’s statements to try and best understand if they are speaking unbiasedly towards both parents.

Other Options

Guardian ad Litem can be assigned to a family law case to represent a child and protect their best interests. The Guardian ad Litem’s goal is to provide a voice for the child in a custody case and provide recommendations to the judge.

Parents and attorneys can request a psychological evaluation to determine what is in the best psychological interest of the child and provide recommendations.  According to the APA, psychologists are encouraged to consider factors such as family dynamics, cultural variables, and the child’s needs. Psychologists perform these evaluations using interviews, behavioral observations, documentation from schools or childcare providers, or psychological testing techniques, among others. Psychological evaluations generally include input from both parents as well as the child.

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