In a divorce, should children live with their favorite parent?

I can’t speak for all jurisdictions, but I can tell you that in the jurisdiction where I practice divorce and family law (Utah), currently the child’s preference for one parent over the other is not expressly among the factors specified in the Utah Code that a judge must consider when making the child custody award. This was not always the case 

As late as the mid-1960s, the law in the state of Utah (and in many other states) was that the child aged 10 years or older and of sound mind had the absolute right to choose which parent would be awarded custody of the child. 

Under the current laws governing the child custody award, a court is not limited to the express child custody factors of the Utah Code when making its child custody determinations. The Utah Code provides that, in addition to the factors the court must consider, it may also consider “any other factor the court finds relevant.” (Utah Code § 30-3-10(2)(r) and Utah Code § 30-3-10.2(2)(i)) 

There is also this provision in Utah Code § 30-3-10(5):  


(a) A child may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the child be heard and there is no other reasonable method to present the child’s testimony. 


(i) The court may inquire of the child’s and take into consideration the child’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child’s custody or parent-time otherwise. 

(ii) The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor. 

So does this mean a court could or would consider a child preference for a parent when making the child custody award? It’s certainly possible and permitted.  

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

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