Can children choose with which parent they will live?

How much input do you let your child have in deciding who they’re going to live with or which parent they’ll be spending more time with?

This is a question on which the law has gone back and forth. In my jurisdiction where I practice divorce and family law (Utah), the law in the 1960s was that a child of 10 years of age or older had, so long as he/she was of sound mind, the choice of which parent got custody of the child (back then the idea of joint custody was virtually unthinkable).

There are some people, particularly today, who believe that children should have no say in the child custody award. Some base this belief in the idea that asking children to weigh in would traumatize them, cause them to feel that they are pitting their love for one parent against the other. Some base this belief in the idea that children are not sufficiently intelligent to make the correct choice as to which parent should have custody of them.

Giving 10-year-old children the absolute right to choose which parent would have custody is probably giving a child more power than the child is prepared to wield or should wield, and puts the child in a needlessly agonizing “Sophie’s Choice” position.

But concluding that children should have no voice in the child custody award is as silly and irresponsible as it is cruel. Just because a child may not be old enough to be entrusted with an absolute choice of the custody award does not mean that the child cannot provide its parents and the court with uniquely crucial observations, experiences, opinions, insights, and preferences that can guide the parents and the court in formulating the most fitting and appropriate custody award. Depending upon how honest the child is with the parents and the court, and how mature the child’s reasoning is will depend upon how much weight the parents in court give the child’s desires. Regardless of how much weight the child’s desires are given, the child still gets to be a part of the process. The child knows that his/her voice is heard and considered. That alone has value for the child.

It’s not a question of whether the child gets to choose which parent has custody, it’s a question of whether we seek the child’s input in addressing and resolving the issue (and it would be malfeasance not to involve the child at that level).

Utah Family Law, LC | | 801-466-9277

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