Can Children Choose Which Parent To Live With?

Determining child custody during a divorce is always a struggle, but it can be made even more difficult with children who are pre-teens and teenagers. It’s not uncommon for children, for a variety of reasons, to express a clear preference for which parent they want to live with. And if their parents aren’t able to work out a custody agreement, then it falls to the courts to decide.

The question then, is whether or not a child’s custodial preference will determine the final custody arrangement when a judge makes their ruling. While the general answer is no, there are both legal and practical considerations that may impact a judge’s decision.
 

Legal Considerations Of Child Custody

From a strictly legal perspective, a minor child does not have any right to choose which parent they live with. By definition, minors are “legal incompetents.” This means that they are not recognized by the court as being able make legally binding decisions, including decisions regarding their custody.

However, in California there is a provision in state law that stipulates any minor over age fourteen who wishes to speak in court about their custody preference must be allowed to do so.

While fourteen may seem like a somewhat arbitrary distinction, the California legislature believes that at age fourteen a child has enough emotional maturity and capacity to reason and articulate relevant and appropriate reasons for a preference.

What this does not mean, however, is that simply by expressing a preference in court that a judge will unilaterally follow a child’s wishes. A judge still must decide custody based on the best interests of the child, even when that means awarding custody to a parent that a child does not want to live with.

Practical Considerations Of Child Custody

On the other side of the equation, judges are often very apprehensive about determining child custody. They understand that family dynamics, history, and self-interest are all heavily woven into custody fights, and will encourage a child’s parents to work out a custody arrangement themselves whenever possible.

Because of this, a child who expresses their wishes for a certain custodial arrangement may be more likely to influence the outcome if all other factors in the case are equal. Additionally, the older a child is, the more weight a judge is likely to place on their preferred outcome.
 

Working With An Attorney

Working with an experienced family law attorney is always the best way to pursue a desired custody arrangement. If a child wants to express their preference in court, either parent’s attorney will be able to help facilitate that process and make it as painless as possible for the child or children involved.

To learn more about child custody, or to get help with a custody case, please contact our offices for a free family law consultation.