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.

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.

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.

Divorce is never easy, but we can help. Learn More

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.

Divorce is never easy, but we can help. Learn More
What Age Do Children in Utah Have Rights to Choose Which Parent to Live With in a Divorce?

References

Related articles

Idaho Child Custody Rights: A Child's Right to Decide

In Idaho, parents may have joint custody, which allows both to make important decisions concerning the child and spend time with the child. If the judge declines to award joint custody, he must give a reason. In some cases, the child may have a preference regarding custody; Idaho law allows the courts to consider the child's wishes. However, because children often feel the stress and tension of a custody dispute or a divorce, some parents may prefer to avoid placing their children in the middle of a conflict.

Child Custody: Criteria for a Custodial Parent

During the divorce process, state courts may determine how to divide child custody between the divorcing parents, if the parents cannot come to their own arrangement. Each state sets its own rules for how custody can be divided, including the criteria each court will use to establish a custody arrangement. Generally, parents can agree to their own custody arrangement, but the court will rely on state guidelines, if the parents cannot agree.

When Can a Child Decide to Live With the Other Divorced Parent by Washington State Law?

In many states, including Washington, courts in custody cases may consider the wishes of a child in terms of which parent he would prefer to live with after the divorce is granted. However, according to the American Bar Association, only two states, Georgia and West Virginia, give a child who is 14 or older the absolute right to decide which parent he's going to live with. In every other state, the judge decides where a child will live according to the "best interests of the child" standard. In short, a child in Washington state can express his preference to the court, but a judge decides where he will reside by designating one parent as the "primary residential parent."

Get Divorced Online

Related articles

How Does Joint Custody Work With Breastfed Children?

Parents who divorce while their child is very young might be faced with a difficult custody issue if the child is ...

The Legal Age in California for Choosing to Live With Your Mom or Your Dad

California courts base child custody decisions on the legal doctrine known as "the best interests of the child." The ...

Factors Used in Determining Child Custody

If you can't reach a custody agreement with your spouse, divorce means putting your family in the hands of a trial ...

What Age Can a Child Decide Custody?

Most state courts are well aware that children – particularly teenagers – can have firm feelings of their own ...

Browse by category
Ready to Begin? GET STARTED