“My child told me that she wants to live with me. How old does she have to be to choose which parent she lives with?” It is a common question in child custody cases. The rumor mills swirl as to what the magic age is in Florida that children have to reach in order to choose where they will live. Is it 10, 13, 16?
Unfortunately, until your child turns 18 years old, there is no guarantee that he or she can decide where to live or who to live with. Courts must focus on the best interests of the child when establishing a parenting plan. While what your child wants is the most important issue for you, the child’s preference is only 1 of 20 factors listed in Florida Statute 61.13 that the Court must consider when determining what timesharing schedule should be put in place in a child custody dispute.
Will the Judge Consider What My Child Wants?
Judges have the ability to allow children to express their opinion, but they are not required to do so and are not obligated to rule as a child wishes. When considering what the child wants, the Court must determine that the child is “of sufficient intelligence, understanding and experience to express a preference.” The Court should take into account the child’s age, intelligence and emotional capacity when determining how much weight to give children’s statements as to which parent they want to live with. The Court also needs to evaluate the possibility of parental pressure or interference behind a child’s statements in a child custody case. Generally, the older a child is, the more consideration the Judge will give to the child’s wishes. It is important to discuss your child’s opinion with your family law attorney in Clearwater.
Can My Child Talk to the Judge?
Children are not parties to their parents’ custody disputes and they should not be put in the middle of their parents’ fights. Parenting decisions are not left up to children; they are only allowed to testify in court under rare circumstances. While extremely uncommon, a Judge may allow a child to testify in chambers without the parents or their attorneys present. As a general rule though, your child is not going to be able to talk to the Judge.
How Will the Judge Know That My Child Wants to Live With Me?
Since children are not allowed to come to Court and state who they want to live with, parents wonder how they can get that information to the Judge. Evidence rules prohibit the parents from testifying in Court that their children said they want to live with them. Written statements from a child are prohibited as well.
The best way to get your children’s preference as to where they want to live and with whom is through the appointment of a Guardian Ad Litem (GAL). A Guardian might be automatically appointed by the Court in a case or one of the parties may request the appointment of a GAL. A Guardian Ad Litem is usually an attorney or a psychological professional who is appointed by the Court to investigate a situation such as contested timesharing and make recommendations to the Court as to how the issue should be resolved. The Guardian acts in the best interests of a child. The GAL will have the opportunity to speak to your child and learn your child’s preferences and why.
A Guardian ad Litem is not the child’s attorney. Attorneys advocate for their clients’ position. If the GAL believes that the children’s stated preference as to where they should live is not in their best interest, the GAL will not recommend it to the Court. A Guardian is not right for every child custody case. Before asking your Judge to appoint a GAL, you should speak with a Clearwater family law attorney.
What Can I Do?
If the timesharing schedule in your parenting plan is no longer working for you and your family, you may file a petition with the Court asking for a modification. If your child is desperate to have a voice in Court or if you believe that continued contact with the other parent is not in your child’s best interest, you should discuss this with your Clearwater child custody lawyer. At the law firm of Julie Beth Jouben, P.A., we can help you with any questions or concerns that you have about making changes to your timesharing schedule and parenting plan. Call Julie Beth Jouben, P.A. at 727-449-9929 and get the answers you need. We can give you the information that you need to make informed decisions.