Can My Child Choose Which Parent to Live With?

June 3rd, 2011 |

On a fairly regular basis I am asked by a divorced parent how old their child must be before they can choose which parent they want to live with. Many parents tell me their child will be 12 years old, 13 years old, 14 years old soon and will be able to make their own decisions. They appear to be uniformly surprised to learn that a minor child does not have the legal right to decide which parent to live with.

Depending on the jurisdiction in which you live, the age of your child may matter only in terms of the weight a judge might give to a child’s preference, should he or she have one. In general, the older they are the more their preference might be considered. Their preferences are not usually considered in a vacuum, however. It could be that Susie might want to live with Dad because he is more lenient in his rules… He doesn’t make her go to church, let’s her stay out an hour later, doesn’t nag her about homework, etc. Or the preference might be because Mom is supportive of Joey’s desire to be on the soccer team or takes him to his horseback riding lessons or is excited about the dance program he is in. When Mom or Dad uniformly does not support a child’s activities when that activity spans the parenting time of both parents, it is not surprising to a judge that a child might have a preference. However, children rarely know all the details of how a parent decides to do something or what both parents talk about regarding their decisions. Sometimes the decisions are financially impacting one parent differently than the other. The child may only know that Mom or Dad is not taking them where they want to go but not that it is not affordable. Whatever the reason, by early to mid teens, a court is likely to take the child’s concerns into consideration in making an order while being very careful not to ask the child to make a decision and learning as much as possible about the context of that preference.

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Asking a child to make a decision, even when the child believes they would like to do so, is often detrimental. I have spoken with many adults who, as children, “got to choose” where to live when their parents divorced. In retrospect, they regretted having made a decision that was honored, feeling guilty about the parent they did not choose and feeling the tug of loyalty between the two people who brought them into the world. Anecdotally, this appears to be true whether they had a good relationship with the unchosen parent or not.

The responsibility of working out the parenting plan for their children rests with the parents. Parents may choose to work with a mental health professional with an expertise in this area to help them understand their differences and to talk through the various options available to them to make the transition the least disruptive for their children. When parents cannot have these conversations, even with help, they often find themselves bringing their indecision to court for a judge to intervene.

Some parents try to influence their children to see the situation as they do. This will often be an additional burden on the child who does not want to disappoint this parent or feels inadequate to resist their influence and also wants to maintain his or her relationship with the other parent. What are they supposed to do now? This is one of the most difficult experiences a child can have while already having to face all the changes due to the divorce itself. And, it is the type of behavior that is often seen as alienating by the other parent.

Children are not marginalized by having no voice, nor are they given the burden of deciding. It is the responsibility of the parents to protect their children from whatever conflict they might have and act together for the benefit of their children.