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Can my Child Decide to Live with my Ex?

At the time of divorce, one of the issues decided upon by the divorcing couple is where the minor children reside. In most modern divorces the children spend significant time with both parents, as is considered ideal by the courts. In reality, one home usually becomes the primary residence with some time spent in the second home. In some cases a minor child might voice a desire to change their primary place of residence to that of the second parent. Whether or not this is allowed or supported by the court varies based on the individual facts involved. 

What is the magic age of decision? 

A young child is generally not allowed to decide which parent they live with. As the child grows, however, the court takes the child’s opinion more seriously when weighing the request. Once a child reaches the age of 12 or so, the judge usually interviews the child directly and seriously considers the request. 

How does the court decide? 

Children base their decisions on things that seem important to them at the time. For instance, a child might ask to change residences because one parent is too strict or insists on a particularly early curfew. This is not the concern of the court, which is why the child’s opinion is only one of the factors taken in to consideration. Some other factors include: 

  • The quality of the parent-child bond
  • The ability of each parent to provide a suitable home for the child
  • The placement of siblings
  • The location of each parent’s home and its proximity to places and people that may be important to the child’s development and well-being 

The court is empowered to appoint a third party to interview both parents and the children to determine what is in their best interest. If the court determines that a change of primary residence is appropriate, the judge will issue an order to modify the current custody agreement to reflect the change. 

Both parents have a legal right to spend time with their children. If a child requests a change of primary residence, it is still the obligation of the parent to ensure the second parent has adequate opportunity to spend time with their children. 

A child custody attorney is available in the Buffalo area to assist you with any modification your current custody agreement might require.

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Randy S. Margulis
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As a Buffalo divorce lawyer for 25 years, I have devoted myself to solving the problems that affect families throughout the Buffalo metropolitan area and Western New York. As a family law attorney, I make it my goal to create a partnership of trust with my clients. People put their trust in me to handle cases that can potentially have a long-lasting impact on not only their lives, but the lives of their family as well.

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