Welcome to the Ayo & Iken legal roundtable. We tackle the toughest legal issues with down-to-earth commentary you can use from our expert panel of attorneys from Tampa Bay to Orlando.
In this edition, we take on one of the more difficult questions of whether a child can make the decision as to which parent he or she wants to live with. It is a question our attorneys say is commonly asked by clients who have heard their children express their preferences over living situations. It can be an emotional situation for parents no matter what the child expresses and our attorneys say if there is not a compromise a judge will consider numerous factors. But if a child is younger that child’s preference will rarely be one of them. And you will see our attorneys strongly believe that keeping children from testifying in court is usually a judge’s preference and is in the best interest of the child.
We talked about the issue with New Port Richey Attorneys Bruce Przepis and Allison Belcher; Orlando Attorneys Jason Ponder, Jennifer Schulte, and Beth Clause; Tampa Attorneys Alberto Ayo and Jeana Vogel; and St. Petersburg/Clearwater Attorney Claudia Blackwell. Here is what they had to say:
Can a child choose which parent to live with in a divorce?
At a certain age, a judge may consider the opinion of a child. The further away a child is from the tender years, the more likely the judge will give that opinion more weight. I would say that age would probably be 15 or 16-years-old. It does not mean that the opinion of younger children is precluded it’s just generally there needs to be a certain amount of maturity there for the court to give that opinion.
I always advise my clients that it is not left up the children. It depends on certain circumstances but generally most judges don’t allow children to come and speak to them about their opinion. If they do, it’s most likely through a guardian ad litem.
A child cannot choose which parent they want to live until they are 18-years-old. As they get older, however, their opinion can have a greater weight with the court. Ultimately, it is going to be the opinion of the court and what is in the best interest of the child.
I am asked that question on a fairly frequent basis. One of the factors is the wishes of the child. There is no magic age but in almost all the cases I have had it is very rare to find a judge who will even allow a child to express a preference or make a decision based only on the child’s preference. So while the law says a child can technically speak to a court, as a practical matter it’s extremely rare. And we have to remember when we are talking about issues of time-sharing we always look to the best interest of the child standard. So we want to make sure we don’t put the child in a position where they have to choose.
Is it common for children to testify in court regarding their preferences when it comes to which parent they want to live with?
A judge doesn’t want to see a child testifying in court except under rare circumstances. In some circumstances, you could have a child testify to a judge in chamber with only the judge and the child. But the best way to get a child’s preference as to which parent would be through an appointed guardian ad litem. That, however, would only be in a situation where the children are older and can offer a preference.
Generally, in disputes regarding children the courts don’t allow the children to decide who to go with. What they do is ensure that the children do have a voice. This can be done in several ways including a guardian ad litem or a psychologist. Generally, age and maturity of a child also plays an important role as to whether they can actually testify in court or have an in-chamber discussion with the judge. But as a general rule children should not and do not dictate what happens in custody disputes.
A child’s preference on which parent to live with is one of nineteen factors a court can consider. Standing alone it is never enough. There are other circumstances for the court to consider that leads to the overall best interest of the child in order to determine who that child is going to live with. If the court finds a child is of a sufficient maturity and understanding the child’s preference can be a factor. The biggest issue you have with this, however, is most judges do not want to talk to children, especially if they are under 14-years-old. And the rules of evidence also state that parents cannot state in court that a child wants to live with them. So in these cases, sometimes the court will appoint a guardian ad litem or some expert that will give the child a voice.
Is hearing from a child in court something you usually want?
In most cases, you want to do everything you can to prevent a child from having to testify in court. It is very emotional, especially if the child has to testify in front of both parents. It is even difficult for a child to even just tell a judge who he or she wants to live because they know the judge has the authority to make a decision. It can be very impactful on children. So it is important to avoid things like that.
Generally speaking, I would say no. The parents are expected to know the best interests of the child. The court oversees proceedings to make sure the parents are acting in the best interest of the children. However, as children get older, I would say 16 or 17, the court may recognize to a certain degree their preference as a young adult. But very, very rarely will a child to come into court to testify against his or her parent.
What do you do if you have a client whose says their child doesn’t want to see a parent?
It’s not the decision of the child. Under our system is basic tenet that the minor children are to follow what the parents say. For public policy reasons, you could imagine how it would be detrimental to society if an 8-year-old child chooses whether he or she want to spend time with one parent or the other. The family fabric would begin to deconstruct if a decision like that was left to a child whose mind is not developed and can be influenced by many, many factors.
I have heard that question for many years. Luckily I am surrounded by one of the largest group of family law attorneys in Florida. I am beginning to think there is no question that would stump this group. As usual, I would like to wrap up by expressing a big thank you for giving all of your opinions. Meanwhile we hope to see our readers come back to the Ayo and Iken roundtable. See you then !
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