Can My Child Decide Who He/She Wants to Live With?

As children get older they often have opinions with regard to custody and visitation and where they live. Often the child wants some say with regard to what happens to them. Although the court will not let the child determine custody and visitation, the court may hear a child’s preference. The child can give his or her preference during the original proceeding or upon a motion for modification.

In a non-jury trial, upon application or upon the court’s own motion, the court “shall” interview a child 12 years or older and “may” interview a child under 12 years old in chambers. This means that the court is required to interview a child 12 years or older if application is made, but the court is not required to interview a child under 12 years old. The interview occurs outside the courtroom in the judge’s office. The court can interview the child with or without any attorneys present. If a party requests the court shall cause a record of the interview to be made.

The child can tell the judge his or her preference with regard to who has possession of the child, who has access to the child, or any other issue in the suit. The child can also state a preference for who has the right to determine his or her primary place of residence. Even though the court interviews the child it is still in the court’s discretion to determine what is in the best interest of the child. The court does not have to honor the child’s preference.