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The Myth about a Child's Age and Choice of Parent

It is shear myth or urban legend that a 12 or 13 year old gets to make the call as to with whom they will live

The phone rings in my office, it's a parent that is recently separated and wanting to know how to establish a custody order. The discussion goes something like this...

Attorney: "Hello, how can I help you?"

Client: "I'm separated from my husband and my daughter wants to live with me, she's 12 now, so she can just tell him what she wants and the courts have to agree, right?"

Attorney: "Not necessarily, we'd have to determine what her reasons are before we can discuss that with the court."

Client: "But I thought that once a child turns 12, they automatically get to decide where they will live?"

Here's the truth about the law

In making an order for custody or partial custody, the court must consider the preference of the child as well as any other factor which legitimately impacts the child's physical, intellectual and emotional well-being. It is important for the court to at least attempt to determine, as best it can, the child's preference.Although the express wishes of a child are not controlling in custody decisions, they do constitute an important factor which must be carefully considered in determining the child's best interests. However, the child's preference, to be given credence, must be based on reasons which comport with the child's best interests, whether or not the child is able to identify them as such. The particular weight to be given a child's preference as to custody is to be determined by the trial judge who sees and hears the child, and varies with the age, maturity and intelligence of the child and reasons given for the preference. Where the child is very young or can give no adequate reason for the preference, the child's choice is accorded very little weight in the decision. Thus, the court is not required to examine a child where the child is of such an age and maturity that the court might reasonably conclude that the child's preference should not be accorded any weight.

No matter how many times I tell a client that a specific age of a child is not controlling, but is just one of many factors, it is always met with skepticism. Sometimes that client even goes elsewhere because it's just not what they wanted to hear. However, AGE IS NOT CONTROLLING. It is shear myth or urban legend that a 12 or 13 year old gets to make the call as to with whom they will live.

If you have questions about your custody matter, contact us to schedule a consultation. You may submit a request for contact Attorney Jeffrey Engle (717) 268-4287.