You and your spouse are moving toward a divorce. You’ve already talked with your children about it and they know that it’s coming. You think that the process will be fairly amicable and shouldn’t be contentious, and you’re just focused on getting everything in order so that the process can move forward.
But then one of your children comes to you and tells you that they want to live with your ex, rather than you. You may feel blindsided or hurt, but you set those emotions aside. What you’re really wondering is if your child can even make this decision. Do they have the legal ability to do so?
How old is your child?
When courts settle differences in a contentious custody situation, the goal is to focus on a child’s best interests. This is why shared custody is used in many cases. If possible, the court often considers it to be in the child’s best interest to allow them to see both of their parents regularly. You may have heard that one factor the court will consider is your child’s wishes. This is true, but age is a very important factor. The court will only consider the request if the child is old enough to understand what that request means for their future.
In other words, if you have a 17-year-old child who just wants to live with your ex until they finish high school and move away, the court may take that very seriously and try to create the best living situation for them personally. But if you have a five-year-old child, they probably wouldn’t even get to express their wishes in court and those wishes wouldn’t be considered.
Additionally, even in situations where a child is old enough and the court will consider their wishes, this by no means indicates that the court is bound to follow those wishes. The child may ask to live with your ex, but the court could still order shared custody if it appears that doing so would be in the child’s best interests.
What steps do you need to take?
Naturally, child custody questions are very important during a divorce. By seeking legal guidance, you can more effectively deal with the challenge of your child expressing a living arrangement preference, regardless of whether the court will be litigating your case or you’ll be negotiating custody and parenting plan terms with your ex.
