Divorce is not an easy process. When there are child custody issues to sort out, it becomes even more contentious.
Some parents, misguidedly, want to leave the custody decision to the child. Which parent would they prefer to live with?
That raises the question: At what age can a child decide which parent they want to live?
Your state might have specific statutes that list a specific age when a child can decide or give input regarding the child custody decision.
In high-conflict disputes, some states will appoint a Guardian ad Litem (GAL) to help investigate the case no matter the age of the minor child in order to determine what is in the child’s best interests. The GAL usually interviews the children to try to determine their expressed preferences and the reasons behind those preferences. It is very important for parents to be honest and upfront with a GAL as they carry out their job.
In general, a child may testify when they are sufficiently mature enough to understand and truthfully take the oath to testify. Still, the child’s desires are typically just one factor the court uses to determine their best interest. (Read more about the best interest standard.)
Some judges might decide that even allowing the child to state a preference goes against their best interest. Asking a child to choose, “Mom or Dad?” isn’t necessarily fair to them.
Usually, by the time the child is 12 years old, he or she can testify and their opinion is given more consideration the older they get. Once the child turns 15 or 16 and is mature enough to come up with logical reasons for modifying custody, the court will tend to abide by the child’s wishes. The deciding factor is that the child needs to come up with a logical reason for changing both child support and custody.
Child custody laws often require the GAL to consider the child’s preferences. Preferences are important to the case, and to parents’ rights, despite their speculative nature.
With that being the case, state laws regarding preference testimony seek a balance between putting children in the middle of the dispute and ensuring their testimony is as reliable as can be.
If you are unsure what your state laws say regarding whether or not your child’s preference can factor into your child custody case, you should contact a family law attorney licensed in your state.