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Child Custody | Family

Can a Child Decide Custody?

11 min read
Philip Ahn, Attorney

by Philip Ahn, Attorney

The older children get, the more independent they become. Many parents have heard their child say (in a civil conversation or an argument) that they would like to live with the other parent. Though this is usually said in the heat of the moment, it can cause a parent to wonder when a child can choose which separated parent they will live with.

Deciding custody can be stressful for parents and children alike. While both parents undoubtedly have their preference for who gets custody, it’s natural to wonder what role children play. Can a child decide custody or have a major influence on the judge’s decision?

While a child’s preference can carry considerable weight in child custody cases, it is typically not the deciding factor. Judges take into account many variables when determining what is in the child’s best interest and who should have custody.

The Role of a Child’s Opinion in Custody Decisions

Every child custody case is unique. There are no concrete rules that dictate how much influence a child’s wishes should have over a judge’s decision to grant custody in favor of one parent or another. A child’s preference does play a key role in a final decision handed down by the court, but it is not the deciding factor. 

Generally, a judge will only consider a child’s desire in custody cases if it is deemed to be within their best interest. If it is not, then the child will have to live with the parent that the judge determines regardless of whether they want to or not. 

Furthermore, a child typically cannot change a child custody order. A potential exception to this rule is if they are old enough to speak for themselves and can prove that they are in physical and/or emotional danger. In those cases, a judge may approve a change in custody.

A judge will take into account the child’s age, maturity, and reputation when considering the child’s preference in child custody disputes. In most cases, a judge will speak with a child privately to determine what their wishes are, particularly if the child requests it on their own or through a court appointed guardian ad litem attorney. 

Sometimes, children are called to testify. However, this is less common. Judges are careful not to make final custodial rulings based on a child’s wishes alone. After all, a child may desire to live with the other parent for reasons unrelated to what’s in their best interest such as less supervision or unhealthy choices from the other parent. 

At What Age Can a Child Choose Which Parent to Live With?

While a child’s preference is not the primary factor considered by a family court during child custody hearings, it can play a significant role in the outcome of a case. Most states do not have a law that specifically defines how much weight a child’s decision should hold in child custody cases. 

However, the older a child becomes, the more influence they can have on custodial matters. Judges handle each case differently. Ultimately, the judge makes a decision based on what’s in the best interest of the child. 

While a child’s custodial preference only plays a role, that role can become larger if the child is around 14 years of age or older. Around the age of 14, judges tend to rely more heavily on the preference of a child since they are more mature by that age and can effectively articulate why they believe it is in their best interest to live with one parent over another.

Though the age of 14 is a standard, there are plenty of examples of children much younger who have made strong witnesses in their child custody cases.

What Factors a Judge Considers When Deciding Child Custody

Family court judges make child custody decisions after considering the totality of many factors. Learn more about what a judge considers before they make a ruling on a child custody case below. 

Each Parent’s Living Situation 

Where each parent lives can play a vital role in the child custody decision process. Judges take into account things like the safety of the neighborhood, the school system, the number of bedrooms available in the home, and roommates that may live with the parent.

If one parent offers a better living environment than the other, that can have a significant effect on the final custody decisions made. Additionally, if there are changes in a parent’s living situation after a final order is given that impacts the child, it could lead to a judge modifying the existing custody agreement if petitioned to do so by the other parent. 

Parent-Child Relationships

The relationship each parent has with their children also plays an important role in the judge’s final decision. A judge is less likely to grant custody to a parent that does not have a good relationship with their child, compared to a parent who is a primary caregiver. This is one area where the preference and testimony of a child (as well as other witnesses) can have an impact on final custody rulings.

Children’s Preferences

As previously mentioned, a child’s preference (especially if over the age of 14) can play a significant role in child custody decisions, but it is not the only factor that a judge will consider in the process. 

Stability of the Child’s Environment

Stability is key for children and judges know this. The parent who offers the most stability for their child typically has the upper hand in child custody cases. Stability is evaluated by factors such as a consistent address, a regular work schedule, the ability to support a child’s extracurricular activities, emotional stability, and financial resources. 

Best Interest of the Child

Though parents typically decide what is in their child’s best interest, in the case of child custody decisions, it is a judge who is left to make the final determination. What is in a child’s best interest will vary on a case-by-case basis. 

In most cases, the judge takes into account all of the aforementioned factors plus others when making final determinations. When both parents are vying for custody, it is recommended that you consult with a seasoned child custody lawyer so you have help to effectively present your reasons why living with you is in your child’s best interest. 

My Ex and I Mutually Agree on Child Custody; Do We Still Need to Go to Court?

If you, your ex, and the child all agree on custody, it may be tempting to forego the legal process altogether and reach an agreement outside of court. While agreeing to a child custody hearing is beneficial, it is not in your best interest to skip going to court. 

The absence of a court order can negatively impact you as well as your child. Child custody decisions made between parents without court approval are not legally enforceable. Furthermore, if there are disputes later, for example, if one parent doesn’t hold up their end of the bargain, or there is confusion, you will not have the standing to challenge the other parent in court.

You have the right to handle your child custody case on your own. However, it is not usually in your best interest. Child custody lawyers help parents to negotiate, draft motions, investigate, present their arguments in court, and determine what’s best for their child. 

Going into a child custody battle without legal representation can leave you vulnerable to unfair conditions, endanger your child’s future, and decrease your odds of a favorable ruling.

What if a Child Refuses Visitation?

If you intentionally block your child from visiting your co-parent (when they have visitation rights), then you can potentially face legal consequences. However, it is not always a parent who refuses visitation. In some cases, it is the children who refuse visitation. This can occur more often the older they get.

However, if visitation is court-ordered, it is in your best interest to facilitate and encourage your child to visit their other parent. If you are unable to convince your child to follow the court order, it may be time to consult with a child custody lawyer. 

Immediate Custody When a Child Feels Unsafe

All states enact laws that protect children in the case of emergencies. If your child has shared with you that they feel unsafe at your co-parent’s home, there are steps you can take to claim immediate sole custody of your child or limit visitation. 

Emergency hearings occur much faster than traditional child custody hearings. They are reserved for situations in which the child is in imminent and verifiable danger. Examples of dangerous situations can include emotional abuse, neglect, violence, or drug use. Effectively collecting and presenting this evidence to the court may require a child custody attorney. 

If your child claims that the other parent’s home is not safe, and there is no available evidence, a judge may order an investigation including input from social workers, child custody evaluators, teachers, childcare workers, or medical professionals. This process can sometimes take months to conclude. 

Do You Need to Go to Court if Your Child Wishes to Live With Someone Else?

If your child currently lives with you and wishes to live with your ex because they don’t like your rules or expectations, then it may be a situation that simply calls for a discussion. However, your child can still express their concerns to the other parent. 

This may cause your co-parent to informally request a change in custody or file for a modification of child custody (if you do not agree to the changes). Additionally, if you agree to let your child live with your ex, it must be approved by a family court judge before it can be legally enforced. 

Skipping the court process can have negative consequences for you as well as your child. It is typically in your best interest to speak with a child custody lawyer before you agree to make changes to your current parental plan. 

Saving Money on Child Custody Matters

Hiring a family lawyer to handle your child custody case can be expensive. Most child custody lawyers charge between $3,000 to $5,000 to get started on your case with an additional $300 to $500 per hour on top of that. 

The amount of money that you pay a child custody lawyer for representation can have a direct impact on your ability to care for your child and meet their needs. Thus, it makes sense to search for ways to save money on legal fees so your money can be put to better use securing your child’s future. Listed below are a few tips to help you save money on legal fees. 

Educate Yourself

You are not expected to become an expert in child custody laws. However, adequately educating yourself on your state’s laws can save you from costly mistakes during the child custody process.

For instance, if you know that the judge in your case will not look favorably on the hours that you work, it may be best to change your schedule or hire adequate child care services. Making changes before you go to court helps to lessen the load on your child custody lawyer and can potentially result in less time and effort needed to effectively present your case. 

Cultivate a Good Relationship with Your Ex and Your Child

A good relationship with your ex can go a long way in saving you money on legal fees. If you can negotiate the terms of your child custody agreement with the other parent before it goes to court, your child custody lawyer has considerably less to do. 

In addition, if you have a good relationship with your child, you have to worry less about their preference to live with the other parent. That good relationship could save you time and money during the legal process. 

Handle Some Aspects of Your Case on Your Own

If you cannot afford full representation, but still desire to hire a child custody lawyer, you may benefit from handling some parts of the case on your own while leaving more complex matters to an attorney.

Many parents face a dilemma when needing a child custody lawyer, but not being able to afford one. Fortunately, those who cannot afford a traditional lawyer for full representation can be good candidates for unbundled legal services. 

An attorney who offers unbundled services will take care of the more complicated legal matters such as reviewing parental agreements, and representing you in court. In exchange, you can handle other facets of your case such as filing paperwork and negotiating with your ex. 

Rates for unbundled attorneys start between $500 – $1,500. While unbundled legal services are not a good fit for every case, Unbundled Legal Help’s network of small law firms and independent family lawyers also offers full representation rates that are more affordable than the average child custody lawyer.

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