A common question that comes during the divorce process is when can a child possibly decide for themselves where they’re going to be living? The critical age that a court is going to look at for the child to make that decision is at the age of 14. The legal standard is a child can choose to live with one parent or the other, as long as it’s firm and reasonable. Those are the two things that have to be met before a child can live with one parent or another. The way it works typically is it’s done by two steps. Either the child actually speaks to the judge and tells the judge why they’re requesting to primarily live with one parent or the other. The other way that is done is a guardian ad litem is appointed. This is an attorney who’s appointed to represent the interests of your child.
The purpose is not necessarily what the child wants. We’ll go and speak with the child and the guardian at litem will make a recommendation after asking whether the child should be primarily living with one parent or the other. It’s important that those two factors are met. It’s a two step process. Number one, is the child wavering at all. If they’re a little unsure and let’s say it’s taken that they just want to live with mom or dad, that’s likely not going to cut it. That does not meet the test.
The other part of the test for a child to have a say who lives with is that the child’s preference is reasonable. For example, if the child tells the guardian ad litem or the judge that they want to live with dad because he lets me stay up late on a school night, then this would not be a reasonable basis to live with dad. It has to be reasonable. It can’t be just because one parent or the other has some sort of favoritism. Now, prior to age 14, a child can still have some say, but it’s not going to have the same effect if they’re the critical ages. At the age 14 is when they can have a lot more influence from the judge in terms of how they want to live going into the future.
