When a Child’s Preference Matters

Generally, children do not participate in the physical custody decision until they are old enough and mature enough to make a decision consistent with their own best interests.  It is highly suspect if a six-year-old tells the judge that he or she wants to live with one parent over the other.  It often means that the child has been coached or manipulated.  Most judges will not place a child in the position of choosing between his or her parents and therefore will not ask a young child who he or she wants to live with. 

With older children, the risk of manipulation is still present, however, teenagers often have a firm opinion on where they want to live.  Judges will often ask the child’s preference in a private meeting in the judge’s chambers.  If the child has a good reason for his or her preference; for example, all my friends live near my mother, or I have always lived at my father’s house and I would prefer to stay there, then the court will give strong consideration to the child’s preference.

 If the teenager says he wants to live with one parent over the other but cannot give a good reason, there is a suspicion that the child is being coached or manipulated. Or, if the child says he prefers to live with one parent for an immature reason then his or her wishes will likely be ignored.  For example, if the teenager says:  “I want to live with my father because he’s never home and I get to do whatever I want” or “I want to live with my Dad because Mom doesn’t let me smoke and makes me study too much” then the child’s preference will likely be ignored.  In that case, the child is too immature to make a decision consistent with his or her best interest.

Finally, with children who are almost adults – 16 or 17 years old – the child’s decision must be given greater deference by the court because the child will likely stay wherever he or she wants to.  There is little that a court or the other parent can do to prevent a 17-year-old from spending time with one parent or the other.