ABA Family Legal Guide

Family Law

3.4 Separation, Annulment, and Divorce

Custody

May a child decide where he or she wants to live?

The wishes of a child can be an important factor in deciding custody. The weight a court gives the child's wishes will depend on the child's age, maturity, and quality of reasons. Some judges do not even listen to the preferences of a young child (for example, a child less than eight years old) and instead assume the child is too young to express an informed preference. A court is more likely to follow the preferences of an older child, although the court will want to assess the quality of the child's reasons. If a child wants to be with a parent only because that parent offers more freedom and less discipline, a judge is not likely to honor the preference. A child whose reasons are vague or whose answers seem coached may not have his or her preferences followed.

On the other hand, if a child expresses a good reason related to the child's best interest--such as genuinely feeling closer to one parent than the other--the court will probably follow the preference. Although most states treat a child's wishes as only one factor among many to be considered, a few states allow a child of twelve or fourteen the "absolute right" to choose the parent with whom the child will live, as long as the parent is fit.