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Divorce Advice for Men | Fathers' Rights Divorce | Child Custody

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age of child choose custodyBy Erica Christian

Divorce Attorney, Cordell & Cordell

Divorce can be a nasty process. When child custody is an issue, divorce is even more contentious. Some parents want to leave the custody battle up to the child, thus the inevitable question:

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 christianErica 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.


Comments (19)Add Comment
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Choosing
written by Paris, July 03, 2012
Hi my name is Paris and my mom and dad got a divorce my mom got me. but i want to live with my dad. i lived in Washington but my mom brought me California and i want to go back to Washington to live with my dad because i know he could take way better care of me and all my friends are down there. My mom lives with her own mom!!! and my dad on the other hand has lots of money. And im only 12 years old
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written by Secret, November 25, 2012
I'm 16. My dad and mom have been divorced since I was 4 & at that time my dad got custody of me up until I was 14. Me and my dad start butting heads all because I was becoming a teenager so I ran to my mom & she took it back to court. They have since then had joint custody of me, my mom being primary custodian. My dad was only granted standard visitation. However, lately I'm realizing that I made a hug mistake by doing that. The past few weeks I've mostly been staying at my dads & my mom is trying to make me come home. I don't want too and I think I've made myself clear on that. Can she make me? Do I need to contact my guardian a litem?
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Visitataion
written by Dennis, February 03, 2013
Ok im 15 and my mom has primary custodian of me, but recently me and my mom have been arguing daily. And i think if there is anyway i can save my relationship with her i will have to move to my dad's and give him primary custodian and she would have visitation instead. My vocab might be off so what i mean is i mainly live with my mom but i still see my dad over breaks and one weekened a month sometimes more, all i want to do is just flip it where i mainly live with my dad but still visit my mom over breaks and weekeneds. Do i have to testify in court or do my parents just have to do it.
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Aunt or Mom
written by lizzy, February 15, 2013
I'm 14 Iive with my grandma for right now. Me and my mom are yelling at each other that I need to ether live with her or with my grandma my mom is divorced. She has been married 4 times once with my real dad and the second and fourth time with my step dad Mike and third time with this guy named buddy. I want to live with my Aunt Brenda because she can spend time with me and if I'm with my mom all she does is yell at me. I've already am self harming myself and the reason is because im getting bullied and she is forcing me to live with her what should I do.
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written by What can I do?, April 08, 2013
I'm 16 years old soo to be 17 and my parents are divorce since I'm 1 year old my mom got my full custody but I don't like her anymore She is always screaming at me she treats me like a maid and I just don't want to be here she doesent even love me or demostrates care for me! I feel like I'm trash to her and she makes me feel like it to I want to go live with my dad but we live in to different states!
What can I do can I go with him or do I have to stay with my mom until I'm 18?
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Living with Mom
written by Sas., May 26, 2013
See, I want to go live with my mom, she doesnt have a job, she is living in an apartment, but I really think it'd be better if I did. My dad has smoking, drinking and anger issues. I love my dad, but I don't want to live with him anymore, I always smell like smoke when I leave the house. I can't get rid of the smell, and he is never going to stop, he has been doing it since he was 14. I don't know what to do, because my dad pays for a lot of my things, he tries to be a good parent, but he has a lot of problems. He refuses to smoke outside. I know he will be really sad if I leave. I dont want to hurt his feelings, I know that if I left to go live with my mom, I wouldn't be able to do dance. I just am wondering if I did go live with my mom, if she would get some sort of child support.
I dont know what to do. I am only 12. I don't want my dad messed up even more than he already is.
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Home >> Articles >> Choosing Mom or Dad: Can A Child Choose Where To Live? Choosing Mom or Dad: Can A Child Choose Where To Live?
written by Trinity, July 14, 2013
Im 12 aaaaand, my mom one time called me an a** ive decided that i want my dad to have full custody over me :D Soooooo can i do that Now or do i have to wait?
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Confused....
written by L, February 06, 2014
My parents are getting a divorce. They are in the middle of it right now. I want to live with my mom. So do my sisters and my brother. We thought things were gonna be ok but that my dad at the last minute decided he wanted full custody. My mom says shes not going to let that happen. I love my dad. We all do. But, we need our mother. My dad works all the time so it would be too stressful and hard on us and him if he got full custody. We need to live with my mom. We all know that it would be so much better and easier. But my dad won't listen. I'm 13....I love both of my parents equally but it would just be best for everyone if we lived with our mom. She is willing to let us see my dad whenever we want. And let him get the most out of the whole $ issue. I want to know if since I'm 13...if I can choose who I get to live with. Can I? I'm willing to do whatever possible to make sure that way stay we or at least me...stay will my mom.
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written by Fed Up. , April 10, 2014
Well.. most of your reasonings to live with the opposite parent are not a good reason. The courts would more than likely throw the case out or not even listen to it just because you're fighting with your mother or father. As long as your parent is providing food, clothes, education, and a roof over your head their job is done! you have to come up with a logical reason why you would like to move in with your mom or dad.. "Just because we fight a lot." is NOT a reason! Ex. I am almost 16, my mother has kicked me out of the house in the freezing cold and I am failing my studies in school because she simply doesn't care enough, she has almost broken my ribs and hand before and is not working, therefore we have "no money" other then child support from my father thank god! but reading these it sounds like petty reasons and the court isn't just going to say "Ok, you can go live with them" it takes awhile and if your parents don't just come to an agreement you have to go through curt, write a letter, and if you DO get granted the privilege to live with that parent you have to move, find a new school, doctor, dentist, move all of your stuff or in most cases (get new stuff). Think about it before.. and 12,13,14 is too young to be going through that.
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Unhappy
written by Renee, April 30, 2014
Ok so I just recently moved to Washington with my aunt and my mom lives in California. I want to live with my mom because she's my mother and I think most growing children need there mom. I'm a 12 year old girl. Can I pick to go back home with my mom?
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Done
written by Hatemylife, May 27, 2014
My father is constantly verbally abusive to my mother and at times me as well. When my mom first married my dad, she did it soley because she was pregnant with me and wanted me to grow up with a father. Since then he has shouted obsenities constantly at my mother, never takes responsibility for his actions, and attempts to guilt me out by telling me that I don't love or respect him and I am ruining his marriage with my mom. I've had it. I've wanted my mom to get a divorce for a while now. She is obviously unhappy and the situation we are in is not healthy. She says she will go through the divorce once I graduate, but things have progressively worsened and I believe she will divorce him very soon. I will be 18 in a few months and am worried if my parents do get divorced I will be placed with my father as my mom makes a very small income in comparison to my dad. However, he has severe ADD which he refuses to take meds for and is rarely able to hold down a job for more than a year. My mom has practically raised me on her own. Do I have a case to stay with my mom if they get divorced before I'm 18?
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written by ..., June 22, 2014
I'm 12 years old and resently I lived with my grandparents. I just moved in with my mom but my grandparents still have legal guardian ship. but I really want to live with my dad. Hes the best thing thats ever happened to me. I dont know how to tell anyone this because i dont want my mom and step dad to scream at me. I need help.
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My court date is tomorrow
written by Eyerusalem Million, July 02, 2014
So my court date is tomorrow, July 3rd 2014, and my mom has custody of my two sisters and I. We have experienced child abuse since we were super little, like yanking our hair, pushing us towards walls, slapping us repeatedly, and kicking us while we are down. It isn't just physical abuse it is also emotional abuse. For example, she would make racist comments, call us her slaves, and say we were going to hell if we didn't do something right away, like massage her. I am thirteen right now, I have a 15 and 11 year old sister. My mom currently doesn't give us our child support money. She buys food once every 2 weeks and our house has 8 people living in it. She put a lock on the fridge do it is impossible to get food when i come back from school and i absolutely loathe having dinner with her because she is always fighting with us along with her husband. Two weeks ago my stepdad beat my older sister up and kept hitting me, because he has the cops on his side and is always calling them saying we are "terrorizing" my mom so they told him that he could hit us. But all he does is lie right now I am at my aunts house and waiting for the order. They will probably twist us into a more terrible lie and tell it in court. My dad USED to gamble and he USED to hit my mom do that won't look good on his part, but my mom has reports on us saying that we are trouble. I need help with this ASAP. Hopefully, my dad gets custody already.
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written by Mallory, July 15, 2014
My parents have been divorced since I was 2. My mom has primary custody and I'm only with my dad every other weekend and Wednesday nights and then I stay over every other Tuesday. During summer I am there even more, Tuesday and Wednesdays nights, and of course every other weekend. My problem is that I don't wanna go to my dad's at all. I don't feel comfortable there, I never have. Him and his wife that he married after my mom (my stepmom) had a kid when I was 7 so he is 7 years younger than me so of course everything is about him. My stepmom and dad also argue constantly and my dad is always on the phone. He is either on the phone with work or something about baseball and it really hurts when I can barely say bye to him some mornings because he is on the phone. Should me and my mom contact the master to eliminate me seeing him?
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written by Tony, July 15, 2014
Ive never liked my mom in general because she is so rude and disresepctful to me and she has abused me several times she pullef me by my hair into her house and then we got into a bloody fistfight and she broke my nose and my stepdad slammed me into the wall several timez and i told my dad i want 2 live with him and he said when he gets custody over me cause my mom and dad were never married when they had me so does it cost money for my dad to get full custody over me and keep me away from my mom for good and have no contact at all with my mom?
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i dont know
written by saccess , August 25, 2014
My dad can be a strick loving parent and puts his kids before him never gives up my mom is loving parent who trys to get thing done when it needs to be they both loves me to death and will do anything they can do to help
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both parents have positions in my life that balance out, but i can only choose one parent
written by john, August 30, 2014
my parents are still in court and i can only choose one. they both hit me, but with their reasons, like bad grades. but my father is the one who is the dependant, but i'm scared that if i leave my mother she will experience emotional breakdown and truma. my father made an excuse that he has low income and somehow he is only going to pay sixty dollars for 3 children in one month, september, there is a supervised visitation with my father so far(my mother has current custody, i dont know wether it will stay like that). i've also been threatened by my mother that bad things will happen if i decide to live with my father, which i doubt but cant deny. now i'm in indesicion of who to live with :(
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trying to help my friend
written by breanna, September 04, 2014
I am trying to help my friend out with a parent problem. she is 13 she currently lives with her mom and wants to live with her dad. i was wondering if it would be worth her trying to live with her dad. she has told me that if she gets in trouble (for doing absolutly nothing or pointless things) her mom sends her down to her room and wont feed her lunch/dinner as a punishment. does what her mom do count as child abuse. my friend told me that her mom has physically hurt her but i am not sure how many times. her mom also has emotionally abused her so much she has no self-esteem and is very sensitive. i really want her to live with her dad so she can be happy but i dont know if she can stand up to her mom because she is terrified of her. i really want help for her.
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figuring out where i wanna live
written by Desiree Smith, October 03, 2014
When i was a little baby my mom gave me to my great grandparents, they have raised me for 16 years. And now my mom beginning of 2013 i met my dad for my first time and i wanted to wait tell i was 18 but it happened so quickly. so now hes back into my life, and i keep telling my grandparents i wanna live with my dad now, because i wanna be with my dad. But my mom has full custody and my great grandparents have Guardianship. This past week i told my great grandpa i want to live with my real dad. I wanna be with him. my family don't like my dad but i do hes back in my life, and i wanna be around him.

i pick my daddy over my mom. but she picks a fight all the time. well i want to live with my daddy im 16 and i have a choice where i want to live.

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