How are the child’s wishes considered by the Family Court?

While courts give greater weight to an older child’s preference, many factors determine whether a court will allow a child to choose where to live

Divorcing or separating parents should always try to agree about how much time their children will spend with each parent. Having the child spend equal time with each parent is ideal, but it isn’t usually practical, particularly when parents live far apart. A child’s need to attend school and to live in a stable residence often dictates that the child will primarily live with one parent.

When parents cannot decide which of them the child will live with, a Family Law Court may need to make that decision. Both parents will have input into the court’s decision, as will experts who advise the court. But what about the child? If the child expresses a strong preference to live with a chosen parent, will the court respect that choice?

Factors Courts Consider

Courts give more weight to a child’s desire as the child gets older. Preferences expressed by a child who is still in elementary school will not usually receive the same consideration as those expressed by an older child.

Age, however, is not always the same as maturity. A child who can explain why he or she wants to live with a particular parent, and who shows sound judgment and reasoning in expressing that desire, is more likely to influence the court than a child who cannot articulate a good reason for choosing one parent over the other.

In addition, some reasons for the child’s choice will be more persuasive than others. If a child feels emotionally abused by one parent, the court will give great weight to the child’s decision to live with the other parent. When parents live some distance apart, a court might also give decisive weight to a child’s desire to stay in the same school or to continue relationships with the same friends.

The Child’s Decision

The court is more likely to respect a child’s decision if it truly comes from the child. When the child has been manipulated to express a preference, the experts who interview the child will probably detect that manipulation. Telling a child, “If you don’t want to live with me, that means you don’t love me” will usually work against a parent. Courts do not like to place children with parents who manipulate them.

At some point, a child may simply disregard a court order and start spending all of his or her time with the parent of the child’s choice. Unless that parent is abusive or the environment is harmful to the child, most courts will accept the inevitable and will allow the child to choose where to live. The age at which that might happen depends on the child’s maturity, but the closer the child is to adulthood, the more likely it is that the court will respect the child’s choice.