Child's Preference in a Divorce

By Heather Frances J.D.

During a divorce, children often want to express their wishes about custody, especially if they have a stronger preference to live with one parent instead of the other. Depending on the child’s age, his maturity and your state's laws, your divorce court may consider your child’s preferences. However, laws vary among states, so there is no one-size-fits-all answer.

During a divorce, children often want to express their wishes about custody, especially if they have a stronger preference to live with one parent instead of the other. Depending on the child’s age, his maturity and your state's laws, your divorce court may consider your child’s preferences. However, laws vary among states, so there is no one-size-fits-all answer.

Best Interests Standard

All state courts base their custody decisions on what is in the best interests of the child, so arrangements may vary among jurisdictions, judges, and even families. Many states' laws mention the child’s preference as one aspect of determining the child’s best interests. Some states specifically list the child’s preference as a factor for the judge to consider, whereas others may allow the judge to consider it as part of the whole family picture. Even if the child indicates a strong preference, judges may ignore the child’s preference if it would not be in the child’s best interests to live with that parent.

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Age

Many state laws are vague about the age at which a child is considered old enough to make a decision about where he wants to live. This allows the court to consider the maturity and circumstances of each child. Generally, courts give more weight to the opinion of older children. In Georgia and West Virginia, state laws specify that a child, once he reaches age 14, has a right to choose the parent with whom he wishes to live. However, even these statutes do not allow a child to live with an unfit parent.

Weighing Preference

Unless state law specifically requires the judge to consider the child’s preference when determining what custody arrangement is in the child’s best interests, a judge may not give the child’s preference any weight if the child prefers one parent simply because that parent is more lenient or because that parent has tried to buy his preference. For example, if a parent promises a child new toys or vacations to entice the child to indicate a preference for living with her, the judge may disregard the child’s preference entirely. Your judge may interview your child privately to get a clearer picture of the child’s motives.

Adult Children

When a child reaches the age of majority in his state, he has the right to choose the parent with whom he wants to live. Court orders for custody no longer apply once a child becomes a legal adult, even if the child is attending college or otherwise still living at home and depending on his parents for support. Similarly, if the child is emancipated, he can choose where he wants to live since he has all the legal rights of an adult.

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References

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