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Can a child choose which parent to live with? [Expert Answers]

Silouette of parents and kids

What happens when a child comes to a non-custodial parent and expresses a desire to live most the time with one or the other? Can a child choose which parent to live with when the legal custody arrangement is being determined in Florida courts?

A Florida judge has a lengthy list of the factors that he or she must consider when determining child custody. One of those factors is the reasonable preference of the child – given that the child has the sufficient age, maturity, and intelligence to reasonably have a say in the matter.

A child’s age, intelligence, and maturity are on a sliding scale. A child in grade school, for example, will have almost no say at all. Courts will determine that they are too young to have any idea what’s going to be in their best interest and what’s going to be good for their emotional well-being. Also, a child of that age may be very vulnerable to influence from either parent.

As a child gets into high school, and especially if a child is in the latter two years of high school, the court may and often is much more willing to give greater weight to a child’s preference. For example, a child getting ready for college will often have the emotional intelligence and maturity needed to understand what is in their own best interest. And while not specifically addressed by statute, there’s often an understanding that when a child gets to that age, they are out of the house more often than not, and it can be difficult for the court to truly order the child to act in a specific way.

It is important to emphasize though, that no matter how old the child is, the child’s regional preference is only one of many factors. In other words, the child does not get to determine where they live. Rather, their desire or preference of where they live is a factor that the court will consider, and the older the child is, and the more intelligent and mature the child is and the faster the rate of child adjustment, the more likely the court is going to give weight to that preference.

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How to show the court your child’s preference

A basic assumption of Florida family law courts is that the courts are for the parents and we should protect the children from litigation whenever possible. This is the will of Florida child custody law.

Then, how do we bring the wishes of a child to the court’s attention when we’re trying to protect the child from the court? There are different methods that you can use on a case-by-case basis.

The most obvious way to bring a child’s wishes in front of the judge or in front of the court is to have the child testify in front of the judge like a regular witness. But bringing a child in front of the judge in open court exposes the child to all the trauma of a family law litigation. That means that this is a method of last resort. A regular witness in open court will have to testify publicly in front of both parties, or both parents, and is subject to cross-examination by the attorneys. This is the last thing that a family court wants to do, and it is almost unheard of for a minor child to testify in this manner.

Another way to present a child’s testimony in front of the divorce court is to have the child testify, but by speaking only to the judge without the parents watching. This is called in camera testimony, or in the Judge’s chambers and away from the public eye. In some cases, the attorneys will be in the room with the judge.

In other custody case matters, the attorneys can waive and agree to not be in the room with the child and the judge. This could be ineffective for you, and everyone involved now trusts the judge to talk with the child and make the right court decision.

While this in camera or Judge’s chambers testimony protects the child more than having the child testify in open court, it still is intrusive and can be traumatic.

After all, judges are trained in being lawyers and have learned how to be judges, but they don’t necessarily have the training and experience needed to ask probing questions of children to figure out what their true wishes are. Still, given the right emotional maturity and age of the child, this can be an effective means to get the reasonable preferences of the child or children in front of the judge who is ultimately making a decision on child custody.

A much more common approach to getting the wishes of a child in front of the attention of the judge is to use third-party expert witnesses to interview the child. These third-party witnesses are often called guardian ad litem or board child custody evaluators.

A guardian ad litem is an attorney, social worker, or other third party who is appointed by the court to act as the child’s “next best friend” in contested child custody and visitation. A guardian ad litem can come onto the case either by one of the parents asking the court, or the court doing it on its own accord because the case is particularly contentious.

The guardian ad litem will be able see the children, talk to them, get to know them, provide child support, and ultimately understand the children’s preferences as to where they want to live – among other things.

Remember, attorneys are expressly prohibited from speaking to the children involved in the case. And for the most part, the parents are encouraged to not try to draw from the children where the child wants to live or otherwise put pressure on the children during the case. So often a guardian ad litem with sufficient training in interviewing children is a great way to get this information from the children and presented to the judge.

A very similar third-party expert is a child custody evaluator. Child custody evaluators are usually trained psychologists or other mental health professionals. They spend a great deal of their work time going through contested litigation cases, learning about the parties and the children involved, interviewing all relevant witnesses, and ultimately making a report or conclusion of the best sort of parenting time and parenting plan. This is then presented to the judge.

Finally, the last way that a child’s preferences can be brought to the judge’s attention is through the testimony of one of the parents or another non-expert witness. For example, a mother might testify on the stand that her child told her that he or she wished to spend most of the time with her.

However, this sort of testimony carries very little weight in front of the judge.

First, this testimony is hearsay. That means a parent is testifying to a statement that he or she heard out of court from his or her child. Hearsay is usually not allowed in family court, because the other parent can’t test the credibility of the statement. If Mom testifies that the daughter came to her and said, “Mom, I want to live with you and not Dad”, Dad can’t really test the weight and credibility of this evidence, because he wasn’t there. So, the divorce lawyer for the other side will usually object to this sort of statement and the judge will exclude it. Note that using a child custody expert or guardian ad litem can help the court get around the hearsay exclusion.

Second, judges get concerned when a parent is testifying to conversations that the parent had with a child about the pending custody litigation. One of the factors that the court is going to look at is whether the parents did a good job of protecting the child or children from all the crazy stuff that’s going on in the contested custody matter. The judges are concerned when a parent clearly shows that they’ve been chatting with the child about things that are best for the parents and the judge to discuss, but the child should not have to be a part of.

In conclusion, where your child wants to live matters if they reach child maturity, or when they are smart enough and emotionally mature enough to understand the decision. And the older the child, the more likely the court is to listen to his or her wishes. But your child’s wishes are only one thing that the court can consider in making a decision as to child custody. And in many cases, that wish is secondary to other considerations like stability of the home, the mental or physical fitness of each parent, or each parent’s ability to promote a good positive child relationship and ex-spouse relationship.

And when the child’s wishes are relevant and need to be presented to the judge, it is important to look for the least intrusive way to present your child’s opinion to the judge. Testifying in front of a judge is not preferred because it can traumatize a child. Using a guardian ad litem or other mental health professional is often the better bet.

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