When Can a Child Choose Who to Live With

There is a common myth that when a child reaches a certain age, he or she can choose which parent to live with based on the child’s preference. However, that is simply a myth. Florida does not have a child’s preference law that gives a child the right to choose where to live. Until a child reaches 18 years of age, the law presumes that the child’s parents or the court should have the final say in where the child resides.

However, if your child has strong preferences for living with you instead of his or her other parent, the court may give weight to your child’s preference in a custody hearing. Seeking legal advice and guidance from an experienced Florida child custody attorney can be extremely helpful when battling for custody of your child.

Custody vs. Parental Responsibility

Florida lawmakers removed the term custody and similar words from the statutes when it changed its child custody laws just over a decade ago. Instead of custody, courts now refer to issues related to a child’s physical, emotional, and financial care as parental responsibility.

Each parent has a legal responsibility to provide for their child. The court recognizes that most children benefit from having both parents participate in their upbringing. To encourage parents to work together and participate in their child’s life after a divorce, judges typically begin a case with the presumption that parents should share parental responsibilities. Of course, there are exceptions, and each case is determined by examining the facts and circumstances of the case.

The overriding principle that guides custody matters is the child’s best interest. A judge considers numerous factors to determine whether shared or sole parental responsibility is in the best interest of the child. In cases involving child abuse and neglect, the court typically grants sole parental responsibility to the other parent and severely restricts visitation with the parent found to be abusive or guilty of neglect.

When Does a Child’s Preference Matter?

Again, the legal system presumes that a child is not capable of deciding what is in his or her best interest as long as the child is a minor. Parents or the courts are required to examine the facts and make that decision for a child.

However, in a custody case, the court may consider the reasonable preferences of the child as it relates to custody matters. As stated above, there is not a certain age at which a judge will automatically give greater weight to a child’s preference between living with one parent or the other parent. A judge must consider the child’s age and maturity, as well as the reasons stated by the child for his or her preference when deciding how much weight to give to a child’s preference for where he or she lives.

In most cases, the older the child is when the custody case comes before the court, the more weight a judge may give to the child’s preference. An older child is typically more mature and has a greater capacity to reason and articulate why he or she prefers to live with one parent over the other parent. Furthermore, an older child may be less likely to be unduly influenced by a parent regarding a preference for living arrangements.

Ultimately, the judge must balance the child’s preference with the other factors that the judge uses to determine parental responsibility and custody. The court is not required to follow a child’s preference if the court does not believe the preference is in the child’s best interest.

Seek Advice from a Florida Child Custody Attorney

Custody matters can be challenging, especially when a child adamantly fights to live with one parent. A Florida family law attorney can provide guidance and legal advice regarding Florida laws related to parental responsibility and parenting plans to help you fight to protect your child. Schedule a consult with a Florida family law attorney today.

About the Author
Andrew Nickolaou, Esq., B.C.S., is a founding partner at Bernal-Mora & Nickolaou, P.A. He practices almost exclusively in divorce, marital and family law. Andrew and his partner, Ophelia Bernal-Mora, Esq., B.C.S., joined forces in March 2016 to form the unique and boutique husband and wife family law team at Bernal-Mora & Nickolaou, P.A. Together, Andrew and Ophelia take a practical and team-based approach to all of their cases and clients to deliver the highest quality experience and representation.