When Can a Child Choose the Parent to Live With? 8

How old must a child be before the judge will let him (or her) choose which parent to live with? This is a really popular question among divorcing parents in Florida. As a divorce lawyer, I often wonder what prompts this question. At what age can your child specify where to live …

Here’s the answer – there is no specific age at which a child can choose which parent to live with.

That means your child will not be permitted to specify a preference in your family law case. Instead, if parents cannot agree on timesharing (custody) the court will look at the child’s best interest, according to the factors found in Florida law.

Choose the Parent – Who Is Right?

The fact is that divorce courts are concerned with parents’ rights because the parents are parties to the case. On top of that, children and legally “incompetent” and cannot be parties to a case. And most of all, judges do not want to make these decisions. They prefer that parents, who have the most knowledge about the children and the specifics of the family situation, make the decision of which parent a child lives with.

The frequency with which this question is asked makes it clear that many parents have a preconceived idea that kids should or ought to be permitted to choose a residential parent once reaching a certain age (usually between 12 and 14). There is no magical age, although some courts do allow the child’s preference to be considered. That’s how it works in Florida. The child’s preference – taking into consideration the age and maturity of the child – is one of the factors a court may consider.

Testifying in Court

What makes me wonder about the question is whether you expect your child to appear in court and tell the judge. In Florida, the policy is to not permit children to testify in court. There is good reason for this policy against child testimony: it is bad for the kids. Children should not be made to voice which parent is preferred or choose between parents.

Most children realize that they are made up of both parents. If one parent is “bad” that means half of the child is bad too. It is not a good message to send your children. When children have been told that one parent is “bad” here is what can happen:

i really REALLY do not want to live with my dad because i feel like he isnt even my father. he isnt and has never been a good parent. and i just want to live with my mom. im afraid if i choose to live with my mom, that he will try to take my little sister away from my mother and make her stay with him. i just want for me and my little sister to live with my mom. my parents both live in the same state in the same area. im fourteen years old so if anyone has any advice or if they can help that would be great.

This 14 year old child is searching for legal answers to adult issues. Every case depends on the specific facts and the family’s overall circumstances will matter as much – or more- than the child’s preference in choosing which parent to live with.

The bottom line for Florida parents is that the child’s preference is one of the factors but your children are not likely to be permitted to come to court to tell the judge which parent they choose to live with.

8 thoughts on “When Can a Child Choose the Parent to Live With?

  • Fletcher

    I will be going to court and a GAL has been appointed to meet with my kids. Will I get a copy of the report before the judge sees it? Should I request a copy.

    • Pamela S. Wynn Post author

      You should receive a copy of the report before court.

      Florida Statute 61.403(5) says‚ÄÉThe guardian ad litem shall file a written report which may include recommendations and a statement of the wishes of the child. The report must be filed and served on all parties at least 20 days prior to the hearing at which it will be presented unless the court waives such time limit.

  • Missy

    My son is about to be 14 in February. He has not had a good relationship with his father for years. He’s a very intelligent child who is very aware of his dads actions from previous years up to now. I have full custody of both my children, which was signed by both of us 2 years ago. Their dad has the normal every other weekend visits, and certain holidays.
    My question is: we live in Alabama, and I have been reading the laws on whether a child has the right to make the decision of whether he has to go or not. I know how important it is for a child to have both parents a part of his life. I’m so torn because every other weekend I go through hell because he doesn’t want to go! Honestly, it’s a break for me to regroup for the next 2 weeks. His dad isn’t abusive, just has always had a hard time parenting his son. Great with our daughter, but shows major partiality towards her because she’s easier to please.
    I want my children happy, bottom line! I don’t have to talk bad about their dad, they see and feel it. They both are very open with me about their emotions and tell me everything. I’m smart enough to pull apart the reality verses the child in what they say. Their dad and I tried in the beginning to work together as parents, but he has chose to seperate himself from their everyday life unless it’s him talking to the kids leaving me out of the picture. He’s very irrational in his thinking which makes it almost impossible for us to carry on a rational conversation. It always leads to him feeling attacked. I’m just at a loss…

  • Amber

    I am 16 and I fight with my mother all the time and sometimes it gets so bad that we don’t talk. We mostly fight about my rights on whether I can talk to my biological father or not and she said that is her choice and not mine but I think she is wrong. I just want to know how I could go about getting out of my moms house who lives in florida and go move in with my father who lives in kentucky but I don’t know how to get it down with my mom fighting about it all the time someone please help me with this I just can’t live with her anymore!!!!!!

    • Pamela S. Wynn Post author

      Amber, learning that things are not always as you want them is a frustrating part of growing up. It is difficult to “emancipate” yourself in Florida which is how you can legally become an adult before you are 18. You have to show the court you are self-supporting and living on your own. Not many who are 16 can do that. Good luck

  • Isis Clemente

    Wether you end living with your mom or dad, there will be many issues that you will not agree with your parents.I am sorry that you are going through such a hard time in your life right now. If indeed your parents are fighting with each other and communiction between them is bad, then you need to step up to the plate and act more adult-like. Throwing your arms up in the air and saying that you can’t live with “her” any more, without giving clear concise evidence of what are the root causes of your mom’s problems, may not be regarded by a judge as mature teenage behavior. You don’t want to give that impression! So, get a grip, TALK to them. Think of a way that a share parental plan may work for you and present it to your parens in a calm, adult-like manner. Try e-mails and texts if it helps you avoid emotional explosions. You may want to urge them to go back to mediation and discuss the plan there. Your parents may want to make adjustments to your ideas. Remember that this is a three-way agreement. Be ready to be flexible. Unfortunatly, we don’t always get what we truly really want in life, and even when we do; sometimes, it may not be what we first expected.
    Yelling will not work, and the silent treatment will work even less. Learn to communicate. This is the only way you can effectively convince others of your needs, especially a judge, if it comes to that.

    I wish you the best of luck!
    Be strong, but remember that flexibility is the key to compromise!

  • Matthew McLay

    my kids live in FLA and I live in NH. We have a parenting agreement but my EX doesn’t follow it only when she wants. What age could kids make a decision to move back to NH?

    • pam Post author

      Children cannot make this decision. Ever. Florida’s court rules prohibit children from being called as witnesses also, except in extreme circumstances.

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