The Wishes of Children as to Custody

Published in Family Law on December 16, 2016

Parents involved in a contested custody case frequently ask what age a child must be before the child can decide where he or she wants to live. The answer to this question is that a child cannot make that decision.  When a child becomes an adult at age 18, then he or she can make their own decision about where they want to live.

The wishes of the child as to his or her custodian are a factor when a judge makes a decision as to the custodian.  However, it is only one of many factors.  It is not the deciding factor.

The importance of a child’s wishes as to his or her custodian increases with the age of the child.  A judge generally gives more weight to where a 15-year-old wants to live than where a 6-year-old wants to live.   One reason for the greater weight given to the wishes of an older child is that an older child is usually more mature in their thought process.  Also, an older child has had more years witnessing the behavior of both parents.  A judge generally gives more weight to the opinion of a teenager because of the reality that it is very difficult for anyone to get a teenager to do anything he or she does not want to do!

When a judge reviews the child’s wishes, the judge will also look at the motivation behind the child’s opinion.  Has the child been bribed?  Is the child under any duress? Does the child want to live with the parent most likely not to discipline?

In all things related to child custody, it is the best interest of the child and not the child’s wishes which will be the deciding factor in a child custody case.