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Child Custody
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What Happens if a Child Wants to Live with the Other Parent?

The laws governing a child and his or her right to choose which parent with whom to reside are far from settled. In fact, laws vary widely from state to state. Many states have started to consider a child’s stated preference for the parent with whom the child wishes to reside when the child reaches 12 or 13.

Notwithstanding a child’s stated preference for the custodial relationship, the family judge presiding has nearly unfettered discretion as to whether the judge wants to take the child’s preference into consideration and, if so, how to weight the child’s preference in the decision-making process. The facts and circumstances of the particular case and parties involved factor highly in the ultimate decision-making process. As such, there is no boilerplate rule of thumb to apply to each case universally.

The older the child, the more likely the child’s stated preferences will be considered by the presiding custody judge. In some child custody courts, children are allowed to complete an Affidavit of Preference and sign. The affidavit specifies the child’s preference for his or her custodial parent.

Factors Judges Are Likely to Consider in a Child Custody Case

While there is no universal set of guidelines for custody preference situations, family judges are likely to consider the following factors when reviewing a child custody preference case, particularly when the preference is expressed in strong terms by the child:

  • Reason(s) the child wishes to change custodial parent and residence
  • Any significant factors occurring in the child’s life
  • Level of stability of the parent with whom the child prefers to live
  • Level of dependability of the parent with whom the child prefers to live
  • Level of child’s maturity (social)
  • Level of child’s emotional development
  • Level of child’s intellectual development
  • Child’s understanding and ability to cope with changes involved in altering a custody arrangement
  • Level of support of each parent for the child’s preference
  • Whether either parent disapproves of the child’s preference
  • Presence of any manipulation or pressure by either parent
  • Whether the move fosters the child’s long-term best interests
  • Demonstration of any significant and long-term benefit to the child from the move
  • Communication of reasons for the move by the child
  • Presence of any uncertainty, confusion, fear, or insincerity in the child’s expression of a custodial parent preference

Judges may prefer to discuss custodial parent preferences and custody arrangements with children in chambers in a more private setting. In such situations, the attorneys and parents are excluded from the conversation. In the rarest of situations and often as a last resort when there is no other alternative available, children may be asked to testify as to custodial arrangements and custodial parent preferences.