There is a lot of confusion out there about when a child can “pick” or “choose” where they live. Different states have different laws and guidelines so you need to be careful when reading things about this topic on the internet. Most of what you read is wrong.
How much, if any, a child’s preference weights into a court’s decision vary. It matters what type of court proceeding is occurring. Children who are involved in CHIPS cases have a more direct voice and could possibly state their case to the court, especially if they are 12 years of age or older. They may have a Guardian ad Litem or their own attorney assigned to the case. Children in family court, commonly with custody or placement issues, are not allowed into court and cannot speak to the judge. Their preference may be communicated though a guardian ad litem if appropriate.
The age and maturity of the child matters when determining how much their opinion matters. There is no bright line rule but rather a sliding scale. The opinion of a younger child, say 5 years old, may carry little to no weight in court. On the other hand the opinion of a 16-year-old will generally carry great weight. Keep in mind that the child’s preference is just one thing the court considers so even a 16-year-old cannot fully choose. The guardian ad litem and the judge have to determine how much consideration, if any, to give the child’s preference.
One thing for parents to remember is that children, no matter what the age, will commonly tell their parents different things about where they want to live. They will tell mom they want to live with her and also tell dad they want to live with him. This is common as children feel put in the middle of their parent’s fight and are just trying to survive. Younger children want to make both their parents happy. Parents cannot assume that because their child says I want to live with you that it will happen.
If you are involved in any sort of case where the placement or custody of your children are at stake it is important to have an attorney to gather as much information as possible. An attorney will be able to get more accurate information from a guardian ad litem than an unrepresented party. We also commonly see parents without attorneys make assumptions about the process or court procedure that are flat wrong and hurt their case. Having an attorney explain this process and give correct information is key.
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