But Junior Wants to Live with Me …

“Junior wants to live with me. That means I’ll get custody, right?”

Parents often boil the anticipated child custody determination down to the above analysis and conclusion. But rarely is a judicial custody determination that simple, either legally or factually.

Legally, the child’s preference is one factor that the court may consider in determining primary residential custody, one factor among many.

Obviously, choosing which parent to live with is a “heavy” decision for a child. Children don’t always know what they really want or what is in their own best interests. Even if they do know deep down, they may prefer (or think they would prefer) the other alternative.

The court, on the other hand, will balance all pertinent factors to make the determination that is in the child’s best interests. That is why the court will only consider the child’s preference if the court concludes that the child has “sufficient intelligence, understanding and experience” to form a “reasonable” preference.

In a nutshell, the court will weigh the maturity supporting the child’s expressed preference. Maturity doesn’t come at any set age.

It depends on the individual child. Some children are not mature enough at sixteen. Others are mature enough at thirteen. But, generally speaking, the older the child, the more mature the child is likely to be.

Even so, no matter how mature the child, the child’s expressed preference is still only one of several factors that the court will consider in the child’s best interests.

Then again, legal rules aside, it is not always so clear to the non-expert what the child’s true preference is in fact, something which will have to be proved to the court.

Children have been known to tell each parent that they would prefer to live with that parent. Especially if the parent grills the child (which the parent should definitely not do).

Children are children. They may not want to hurt or disappoint either parent by stating a preference to live primarily with the other parent. Or they may be fearful of resulting rejection or even punishment. Not to mention that children change like the wind.

In some cases, parents should think twice before pinning too much on a child’s expressed preference.