Often when parents get divorced, determining the custody of their child can be the most difficult decision of all. If the divorce is not amicable, the biggest fallout is usually the emotional well-being of the child. Is the child able to voice their opinion concerning custody and tell the court who they want to live with and why?
If the parents cannot come to an agreement concerning visitation, child support, or custody, it is up to the court to decide the terms. If the child is old enough or mature enough, the court will also listen to their opinion when taking into account the terms of the custody arrangement. Many states use the ‘age of discretion’, usually somewhere around ten years old. This is the age where the court system believes the child capable of making sound preferences.
Legal Custody and Physical Custody
Most states refer to both legal custody and physical custody. You can have legal custody of your child without having physical custody. Legal custody gives the parent the right to make decisions about their minor child’s education, healthcare, and religion. You can have joint legal custody or sole legal custody.
If your child lives with you, you have physical custody. This can be sole physical custody or joint physical custody. If you are awarded sole physical custody, the noncustodial parent often gets visitation rights.
Even during a legal separation custody details need to be worked out for the benefit of the child.
When Does the Court Consider a Child’s Preferences?
If the court determines that the child is mature enough to talk to the court about their parent preference, the court will seriously consider their request.
A child could have sound reasons why they would prefer to live with one parent over another, at least for the period immediately following the divorce. The child may want to stay in the home where they go to school, have friends, belong to a church or sports team, or live near relatives. A divorce is a big change for the child and keeping as much of their life stable during and immediately following their parent’s break up is important.
It is up to the judge to determine the sincerity of the child’s wishes versus just wanting to live with the parent who will have fewer rules or responsibilities. In the case where both parents seem to be stable, the preference of the child will hold more weight.
How Does the Child Provide Testimony about Their Parental Preference?
If the judge feels the child is mature enough to testify in court, the child will do so. There are other ways for a child to express their preference during the court process. The judge may speak privately with the child, or speak with a child therapist.
The parents may wish to use mediation as a means for deciding custody issues. If this is the case the child’s preferences are heard along with both parents and a decision can be made that is mutually agreed upon.
Contact an Attorney
As in all cases, the goal of the court is always putting the best interests of the child first. Enlisting the assistance of an attorney experienced in custody laws will enable you all to find the best solution to your custody issues.