In a Custody Case, How Much Do the Child(ren)’s Desires Weigh In?

In a Custody Case, How Much Do the Child(ren)’s Desires Weigh In? by Joshua Katz

{2:40 minutes to read} In every custody case, there are at least 3 parties: two parents (usually), and the child. The child’s desires are an important factor for the court to consider. The court will appoint an attorney to represent the children to hear what the child has to say in terms of his or her own best interests.

If the child is under 7, they will still be given an attorney, but in most instances, their viewpoint is less relevant than an older child’s viewpoint. Up until about age 7 the attorney for the child can substitute judgment and advocate for what the attorney believes to be in the child’s best interests.

For a child between approximately 7 and 12 years old, their desires are more relevant to the court. At about the age of 12 or 13, that child’s wishes are fairly determinative and become one of the more important factors for the court to rely on.

The more mature a child is, the more weight will be given to his or her will. If the child is able to articulate mature reasons about homework assistance, living quarters, neighborhoods, etc., then the child’s attorney must represent and advocate for the child(ren)’s preference. This is why the job title was changed from “Law Guardian” to “Attorney for the Child.”

A court should not consider the child’s desire to be with one parent or another if their only interest is that dad is better at X-box, or mom’s spaghetti tastes better. Courts will heavily rely on real, mature reasons relevant to the child’s best interests.

As children mature, they are given more self determination. The courts take the children’s desires into account when determining their best interests. Once a child reaches approximately age 15 to 16, the court will simply place a child with whichever parent he or she prefers. Custody is legally irrelevant once a child attains 18 years of age.

When you think of your own children, do you feel that they are mature enough to make reasonable everyday decisions? Do you think they would be able to give clear reasons about their best interests if they had to?

Contact us today if you have questions or concerns.

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