Truth: A child cannot make a determination about custody. But they will be heard.



One of the questions I receive most frequently when consulting with parents is:

“At what age can my child decide who she wants to live with?”

Followed by:

“I was told that at the age of twelve she can decide for herself.”

Sadly, this misinformation comes from neighbors, family members, friends, even teachers and therapists. Regardless of the source, it illustrates the prevalence of myths and inaccuracies in the way many people view divorce and custody proceedings.

My answer: A child cannot make a determination about custody. The age at which a child can have the final say is 18, or when they are no longer considered a child. Until that point a child does not get to make the ultimate decision about where they will live, or with whom.

That is not to say they won’t be heard. Recent legislation gives children an absolute right to have their voice heard when it comes to determining a custody arrangement. The older the child is, the more likely the child’s wishes will be given consideration, and the more carefully the court will consider the practical limitations on dictating what they may do.

However, at any age, a child may express their desires and have them considered and given weight by the court.

The key is not the age of the child: but rather the maturity and ability to rationally explain not just what they want, but most importantly why they have that opinion. Just because a child is 15 doesn’t mean she gets to make the decision because it may be based on the simple fact that one parent has more restrictions and rules to follow than the other. Conversely, a six year old may have significant input into his living arrangement if it is based upon a legitimate fear of an abusive parent.

The wishes of a child are just one of the factors the court has to consider in making a custody determination. The more informed the parents can be as to the actual factors and not the mythical factors, the greater the likelihood of reaching a reasonable resolution.

Forester Purcell attorneys practice exclusively in the area of family law and are well-versed in the area of child custody and visitation.

Authored by Matthew K. Purcell, Certified Family Law Specialist at Forester Purcell Family Law Attorneys in Folsom, CA.

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