Most courts discourage involving children in child custody battles. However, among the factors to be considered by the court when the parents can’t agree on custody and visitation plans, is the preference of the child or children.
Sometimes It can be in the best interests of the child for the court to consider a child’s opinion… depending on his or her age.
In most states such as Alabama and Illinois, the courts discourage children from testifying on custody battles between their parents.
The battle can be emotionally draining on the children and for that reason courts discourage children from testifying on these battles. However, a child’s preference would carry some weight, especially when the child is old and mature enough to make decisions that are not emotionally charged.
When the children are required to testify, the court will isolate them and interview them without the influence of their parents but in the presence of their attorneys.
In this case, the attorney would act on behalf of the parent and may ask questions directly to the child.
Best interests of the child
The court will only decide on child custody battles based on what is in the best interest of the child. If the child is of age and understands the importance of telling the truth in court, then the weight of their preferences or opinions are taken seriously by the judge.
The child may want the court to let him live with one certain parent, might request how much time to spend with each parent, or may even want to never see the other parent again.
While the court will act based on the best interests of the child or children, a child’s opinion may be influenced by:
- How one of the parents treats another.
- Reaction to something that the parent recently did.
- How he or she feels about the parent at that moment.
- How the parent treats him or her.
While these are valid reasons the judge would consider in the best interests , the judge will analyze the situation that may have led to the child behaving in a certain way towards one parent.
Laws Regarding Child’s Preferences in Child Custody Battles
Different states have different laws regarding child custody and the preference of children in custody.
While most of the states consider a child’s preference, most of them would only put weight on children who are mature or old enough to make decisions that are not based on emotions. In most cases, children who are above the age of 14 years.
In Georgia for instance, the law allows a child who is 14 years old and above to choose a parent with whom to take physical custody. That choice is then approved by the judge.
This is the only state in the U.S where the child is allowed to choose the parent whom he or she wants to live with.
In California, the child’s preference is considered by the judge. Under Family Code 3042, the judge is obliged to consider the preference of the child if the child has adequate emotional and mental reasoning capacity about custody and visitation.
In addition to that, if the child is 14 years and above, the law allows them to address the court over custody matters.
Weight of Child’s Preference
A child may relate differently with both parents. At a tender age, they may be more connected to the mother than to the father. This also happens when one of the parents is strict or does not spend much time with them.
When it comes to a child custody case, the child may react based on the behavior of one of the parents towards them. They may want to spend more time with a lenient parent than with a strict parent. This normally is the case when the child is young where the decisions that he or she makes are based on emotional reactions or reactions to something other than what may be for their best interests.
While the law in most states allows for children to have a say on which parent to live with, a judge would consider the opinions of a child with a mature age more than that of a younger child before the age of 11 or 14 depending on the state.
In Florida for example, a child who is considered to be intelligent enough to make his or her decisions without the influence of external factors and understands the kind of decision he or she is making carries more weight than a minor who is too young to make informed decisions.
In Florida, there is no particular age when the court would give more weight but it is upon the judge to consider the child’s level of maturity in making decisions that affect their lives.
Child’s Age and Opinion
In most states, the court will consider the opinions or preferences of the child based on the age of the child.
In Georgia, a child who has attained the age of 11 is allowed to give their opinions to the court and when a child has attained the age of 14 years, that child is old enough to decide on which parent he or she wants to live with.
At 12 years old, states like Mississippi, Texas, Tennessee, and Oklahoma would consider the opinions of the child regarding their custody.
Children who are below the age of 8 years are considered immature in their decisions and the court or judge would give less weight than that of children between age 8 and 11 years in most states. Above the age of 12 years in some states, a child’s opinion is highly considered by the court, and after the age of 14 years, the preferences of the child or children are almost absolute.
The decisions of the child after this age would be likely to be granted by the court given that the parent is fit to take custody of that child.
Judge Consideration of Young Child’s Input
As we have noted, the age of the child matters when it comes to child custody matters.
If the child is of mature age, that child has the absolute right to choose the parent whom he or she wants to live with. For young children whose decisions may be influenced by immediate factors, the judge may give less weight to their opinions.
It is worth noting that young children who have not yet matured may make decisions based on their emotions at that particular moment, and based on things that may not be of best interest to them such as:
- Considering one parent as lenient to them.
- Doing fun things with one of the parents.
- Being afraid of the other parent who may be strict with them.
- The guilt of disappointing one parent by staying with another.
So, do kids get their say in a child custody battle? Yes! Kid’s have a say in custody battles but their opinions and preferences are considered based on their age, their maturity, and their understanding of telling the truth in the court.
As we have noted, different states have different laws and statutes regarding the ages when children are allowed to share their opinions with the court and to choose which parent to take custody with.