Questions of if, when, and how each parent will have custody of their children is a huge part of divorce proceedings. Many factors are considered by the judge as they make their decisions about child custody, including the parenting capabilities of each parent, the relationship of the child to each parent, and the living situation in which the child will find themselves. While each parent will have an opportunity to present their case for their custody preferences, it is ultimately up to the judge to decide what they believe is best for the child.


But what about the preferences of the child? How much say does a child have in the important question as which parent they will (primarily) live with, as this may also determine where they live, which school(s) they attend, and so on? Is there a certain age at which a child becomes responsible for making this decision on their own, without the ruling of a judge?


Generally speaking, there is no set age for when a child is provided the right to live with the parent they choose, without the need for a ruling by a judge. With that being said, the preferences of the child are certainly taken into account throughout the proceedings. While courts avoid asking young children to provide public testimony in court — especially in front of one or both of their parents — the judge will interview the child in the court chambers with the child’s attorney present. In reviewing their testimony, the judge will certainly take the child’s age into account, but there are other matters to consider as well.


For example, if an extraordinarily bright ten-year-old child demonstrates a clear understanding of the situation with their parents, and can articulate why they prefer to live with one parent over another, the judge may base their ruling heavily on their testimony. On the other hand, if a fifteen-year-old child displays short-sighted reasoning behind which parent they choose (such as, “I want to live with my dad because he said he would buy me a car”), a judge may dismiss their testimony altogether. The judge may even decide to rule against their preferences based on their testimony if they suspect that one parent attempted to sway their opinion through bribes or blackmail.
In other words, while the age of a child is certainly a factor in custody decisions, it is only one factor of many. The very fact that there is not a “hard and fast rule” regarding a specific age when a child is permitted to make these decisions on their own could be considered a recognition of how every family’s situation is unique. Sometimes, a five-year-old child has better insights into where they should live than a sixteen-year-old. At the end of the day, what really matters is that in the midst of a difficult time of transition, your child is provided the best opportunity to find success and happiness.

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