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“I Want To Go Home”: Child Preference in Custody Cases

No aspect of divorce is more painful than disagreements over child custody.   Even if parents are able to remain civil, children are very sensitive to the unhappiness of their parents—and their own participation in that unhappiness.

Divorce is never easy on any family member.  At the same time spousal relationships are dissolving, parental relationships to children undergo rapid, forced change as a result of custodial arrangements—or lack of them.

When a couple cannot agree on a custodial arrangement or parenting time, the court must decide the best arrangement for children based on a custodial evaluation and the best interests of a child.

In addition to qualitative relationship factors, the court takes the preference of a child about living arrangements into account if the child is of sufficient age to express his or her wishes.

I am often asked by clients how much weight the preference of a child has.  No child can decide where they want to reside until reaching eighteen.  However, the closer to eighteen a child becomes, the greater the weight of his or her opinion.  Maturity is often a deciding factor—does a child understand what he or she wants and why?  And as a practical matter, the preference of a teenager is difficult to ignore.

Custody trials are complicated, usually rife with accusation, and no outcome is certain regardless of clarity of evidence.  If considering divorce, and if custody is likely to be a disputed issue, get good legal advice from the outset.

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