Child Custody and the Child’s Choice


Children worry when parent's fight

Children worry when parent’s fight

Last June I wrote an article answering a common question – if parents are getting a divorce, or are already divorced, can a child choose which parent  (or where) he or she wants to live?   This is such a common question that I feel as though I have not completely addressed the concern.

Note, this is the fourth installment on this question – the other installments can be viewed at:

In the third installment posted in June, 2015, I explained that although a Judge must interview a child 12 years old or older in a non-jury custody fight (if any party asks) the judge does not have to follow the child’s wishes.  Simply put, a child who is at least 12 years of age can tell a Judge what the child wants.  This fact is so strongly supported in law that the Judge does not have  a choice in the matter.  If any party to the proceedings makes a request, the Judge MUST interview the child. However, the mandate is that a Judge interview or take into consideration the child’s desires.  The mandate ends at listening and always be mindful the Judge has the right to say no.

Just as a parent does not have to give a child everything he/she asks, the Judge does not have to grant the child’s desires in a custody battle.  That said, reality dictates that the child’s desires are given a lot of weight.  I generally explain that if you need 100 points to win the custody fight, the child’s desires are a 50 point head start for the parent the child chooses.

So, why can’t the child decide?  Children, and particularly young teenagers want to do all kinds of things that parents will not allow them to do.  What kind of world would we live in if a parent could not say “no” to some requests?  Why would the law ever tell a parent they must agree with any and all request a child makes?  In this same regard, why would there be a law that makes a Judge grant a child’s request without any guiding principals?  Accordingly, a judge (like a parent) has the power to say “no”.  Like a parent, the judge will listen to a child’s wishes regarding custody but will say “no” if it is not in the child’s best interests to live primarily with the chosen parent.

This leads me to a scenario where the child or children are not yet 12 years of age.  What happens then?  How do you get a child’s desires expressed to the court and does it matter?  Simple enough, even if the child is not 12 years of age, a parent can ask the judge to interview the child in chambers.  The Judge may or may not grant the request.

Two more expensive options are to ask for the appointment of a lawyer for the child (an amicus attorney or an ad litem) or file a request for a custody evaluation by a psychologist. The child can tell the amicus attorney/ad litem or the custody evaluator who he or she wants to live with and that will usually be reported to the judge. Another option is to take the child to a counselor who can be called as a witness in court. A counselor will usually be allowed to testify about what the child wants and why despite the rules against hearsay but keep in mind, the counselor is being put into a dual role scenario and many juvenile counselors are not comfortable getting involved on this level.  That said, do not discount getting a child counseling when a divorce or custody fight has affected the child’s life, failing to recognize the stress your divorce/custody goals place on the child is a big deal because it can be used to show you are putting your own goals before the best interest of the child.

This is not to say every child needs counseling when the parents go to court, but failure to consider what you are doing to the child or how your legal battle affects the child . . . well that is one way to loose custody.  You can read all about that in my blog titled How to Loose Custody if 5 Easy Steps  available at:

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