By Erica Christian
Divorce Attorney, Cordell & Cordell
How old does a child have to be to decide where and with which parent they want to live?
There may be a specific statute in your state that provides for an age when a child may determine or provide input as to the child custody decision. When there is a custody dispute in my state (Wisconsin), the court appoints a Guardian ad Litem regardless of the age of the minor child, to determine the best interests of the child.
Generally, a child can testify when they are of sufficient maturity to understand and take the oath to testify truthfully. However, the child's wishes are usually only one factor the court will use to determine the best interest of the child. (Read more about the best interest of the child standard.) In some states, the judge must determine whether permitting the child to state a preference is even in the child’s best interests.
Usually by 12 years old a child can testify. As the child gets older, his or her wishes carry more weight. By 15 or 16 if the child is of general maturity and has logical reasons for changing the custody, the court will often abide by the child's wishes. The key is that the child has to have a logical reason for changing the present support and placement.
Child custody statutes routinely require the fact-finder to consider the child’s preferences. Despite their speculative nature, preferences are important to the case – and to parents’ rights.
Therefore, state rules for preference testimony strike a balance between protecting children from the pain of having to choose and ensuring their preference testimony is reliable, or as reliable as can be.
You should contact an attorney licensed in your state to inquire as to whether a statute defines when a child can decide and the standard the courts apply in determining custody and placement.
Cordell & Cordell has men's divorce lawyers located nationwide.
Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.
Ms. Christian received her B.A. in Journalism and Mass Communication as well as her Juris Doctor from the University of Wisconsin, graduating with academic distinction.