Child custody is decided on what is in the child’s best interest but not necessarily on the child’s preference. However, this does not mean that a child does not have a say in where he or she is to live and with whom. If you have children, making arrangements for residence and contact will be some of the biggest decisions you will make once you separate or divorce.
You and your spouse will have to decide where your child will live and who will become the primary caregiver.
You also need to decide how and when your child should have contact with the non-resident parent.
Many couples are able to make arrangements between them to suit their family circumstances. However, other situations are more complicated, and it is possible that you won’t be able to reach an agreement with the other parent.
Depending on the age of your child, you may want to get their input into this decision. However, their wishes and feelings – and any decision you make – may not be legally binding.
As a child cannot legally decide who they want to live with until they are 16, the responsibility for this decision usually rests with the parents.
When Is The Answer “Yes, The Child Gets To Decide”?
In effect, children can “choose” which parent to live with if all involved decision makers — that is, the significant adults in the child’s life — are in agreement about the child’s future living arrangements and that agreement meshes with the child’s own wishes. In fact, joint agreement is the most common way for resolving a child’s custody.
This is probably the most frequent outcome because a child may clearly appear to need to be more bonded to one person and/or place at any particular period in the child’s life and because most parents share a common perception of their child’s needs. Thus, even very young children unable to verbalize a preference for their primary living arrangements often exhibit, through their conduct, a greater affinity to one or another caretaker and/or to one or another living situation (this is seen in the child’s favoring proximity to particular neighborhoods, day care environments, or to already developed friendships). And the important people in the child’s life recognize the child’s expression of its needs and act accordingly.
This ability of most parents to recognize and satisfy by mutual agreement their child’s basic needs for a “best fit” living arrangement persists over the entire period of the child’s minority; and it is a flexible recognition, ready to change the child’s home as the child’s needs change. For example, a child’s needs may dictate staying with dad from ages 4 to 10; but, if needs begin to change toward the end of elementary school, mom and dad can often agree to modify physical custody to suit the child’s changing needs. A later alteration in living arrangements may occur and frequently does in the face of the child’s insistence that “it’s time you let me go live with mom [or dad].” As long as everyone continues to agree, the child’s preferences can be implemented.
When Is The Answer “The Child Does Not Necessarily Get To Decide”?
The child does not necessarily get to decide where he or she lives if either you or your spouse disagrees strongly enough with your child’s wishes. “Strongly enough” means that you move outside the immediate family to resolve a dispute over living arrangements, regardless of the child’s preference exhibited by behavior or words. Typically, this moves to domestic court, where the issue gets decided by a judge.
However, parties are increasingly using mediation and arbitration as means of resolving custodial disputes. A mediator or arbitrator will attempt to ascertain a common meeting ground between you and your spouse as to the weight to be given to your child’s wishes, because a mediator will endeavor to facilitate everyone’s agreement over the best physical arrangements for the child.
In court, the situation is similar but not the same. The law in Utah tells the judge he or she does not have to interview the child, nor pay much if any attention to the child’s exhibited preferences. Therefore, like you and your spouse in mediation, a judge is free to give the child’s wishes (if known to the judge) as much or as little weight as he deems appropriate.
The difference between a court’s resolution and a mediator’s resolution is that the judge is not in the business of facilitating agreement between the parents. The judge’s entire task is to determine what appears to be in the child’s best interests. A judge’s decision about the child’s best interests can be shockingly different from the child’s own view of those best interests, let alone the parents’ views. Judges consider a host of factors in custody cases, including
• Parental capacity for affection
• A parent’s physical and mental health
• Sensitivity to a child’s needs and ability to act on those needs
• The nature of one parent’s relationship to the child’s other parent.
The judge’s analysis and weighting of such factors have no necessary or predictable interface with the child’s expressed preferences. The child’s preference may carry greater weight if the child appears to the judge to be mature enough to understand his situation, although many child psychologists as well as judges take the position that no child should be asked to make a choice between parents.
The judge’s potential disregard for a child’s wishes is all the more likely when the judge suspects, rightly or wrongly, that a child’s preference is being articulated under direct pressure from one parent. In such cases of suspected parental “alienation,” the judge may request additional psychological data regarding the child in an attempt to discern the child’s less conscious (and more genuine) wishes.
The judge’s complete discretion in this State to overrule a child’s preferences can have surprising results.
From the standpoint of his authority under the law, a judge in North Carolina can enter an order finding it in a 16-year-old boy’s best interests that he reside exclusively with his mother even though the boy has adamantly insisted for the past two years that he wants to live only with his father and, as part of that insistence, has taken to fighting with his mother physically and verbally over the issue.
Unlike some other states, the law in North Carolina permits the judge to totally override a teenager’s firmly expressed preferences until the child ceases to become a minor at age 18 or otherwise, making the answer to the question of “Can children choose which parent to live with?” effectively “No, not if the judge disagrees with them”. However, even though this judicial power to override a minor’s wishes is firmly embedded in our law, the practical realities are that family law judges tend to give more heed to a child’s wishes as the child becomes older, and hence more mature and more able to evaluate relationship issues and psychological needs.
Judges also realize that most children of 14, 15 and 16 have an increasing ability to signal their displeasure over unsuitable living arrangements by acting out and even running away. From experience, judges have learned that they can order a 15-year-old girl to live with her mother, but that the girl who hates her mother will show up on her father’s doorstep the very next day and on any other day after she is returned to her mother.
To sum up the situation in court resolution of a child’s physical custody, the court’s legal conclusions about where a child should live must be guided by the best interests’ standard. And, technically, only where a judge perceives the child’s best interests to overlap the child’s own preferences will those preferences be honored. But it is more, rather than less, likely, that a child’s preferences will carry greater and greater weight as the child grows older, provided the child’s wishes appear to be well-founded and genuine.
At what age can a child choose who to live with? A child cannot legally decide who they want to live with until the age of 16 unless there is a child arrangement order in place that has been extended until they are 17 or 18 years old. Until then it is ultimately the decision of the parents to decide or if they cannot agree, a child arrangement order will specify where the child lives.
Why Children Can’t Decide Custody
Anyone who has spent time around children knows that they don’t always want what is best for them. If kids had it their way all the time, there would be no bed times, oral hygiene, school, or vegetables. A child’s preference is not always what the child needs, and it is the court’s job to ensure the custody arrangement will best meet the child’s needs.
How Do You Decide Who A Child Lives With After A Divorce?
Deciding how the children will spend their time with both parents after a divorce or separation is one of the most important decisions to make. It is the decision of the parents to decide who is going to be the primary care-giver (meaning the person the child lives with) and the time spent with the non-resident parent.
What if both parents agree?
For some families, the decision will be clear while for others, for example, if one parent works away frequently, it is more complicated. The right choice should be the one that meets the best interest of the children, not the parents and there are many options open as to how children split their time between their parents. If parents can agree then they can make arrangements between themselves avoiding lengthy and expensive legal proceedings.
What If Parents Cannot Agree?
If the parents cannot agree who the child should live with on divorce or separation they can use mediation or negotiation via their solicitors to reach an agreement. These options should be considered before any court application is made.
What If The Other Parent Doesn’t Return The Child?
If there is no order in place, a parent has not broken the law if they do not return a child after contact, providing that parent has Parental Responsibility. While the police may check that your child is safe, they are unlikely to involve themselves in the situation. If you cannot resolve the issue with the other parent, you could consider using mediation or negotiation to resolve the dispute. If the issue is still not resolved, you may have to go to Court to either apply for an Order, or to enforce an existing Order (if there is one in place). If you have welfare concerns about your child and they have not been returned by the other parent, you may be able to apply for an emergency Child Arrangements Order.
How Can Mediation Help?
Mediation can support separating parents to discuss matters, including arrangements for the children and help the parents to try and reach an agreement on practical issues such as where the children should live.
A mediator cannot provide legal advice and therefore you should always seek independent legal advice on any agreement reached. Mediation is not suitable for all cases, particularly where there has been domestic violence.
What Happens If You Go To Court?
Child Arrangement Orders
If necessary, you can make an application to the court for a child arrangements order. This will mean that a judge decides where the child will live with consideration of the child’s best interests, wishes and feelings.
The child’s age will determine how much influence they have on the judge in respect to their wishes and feelings. Generally speaking, a child who is 12 years of age/in their early teenage years will have more influence in respect to their wishes and feelings than a much younger child. The majority of child arrangement orders are in place until the child turns 16 years old but they can be extended to 17 and 18 years old.
If you have an order that states that the children live with you (formerly known as a residence order) this also means that you are able to take the children out of the jurisdiction of United States for a period of up to 28 days without having to obtain the consent of the other parent. You do not have this ability when you have an order that the children spend time with you.
Is This Process Different Between Married And Unmarried Parents?
The process is the same for married and unmarried parents, as long as the father is named on the birth certificate and therefore has parental responsibility and there is no dispute about this.
What Are The Father’s Options If He Does Not Have Parental Responsibility?
If a father is not named on the birth certificate and is not married to the mother then he does not have parental responsibility automatically.
The father has the following options to acquire parental responsibility without issuing court proceedings:
• By marrying or becoming the civil partner of the mother
• Becoming registered as the child’s father (re-registering the child’s birth with the mother’s consent and as long as no father has been previously named)
• Entering into a parental responsibility agreement with the mother
• Becoming a formally appointed guardian
If it is necessary to make an application to the court then a father can also obtain parental responsibility by obtaining the following:
• A parental responsibility order
• A child arrangements order in which the father is named as the person who the child/children with live with and therefore a separate parental responsibility order must be made
• A child arrangements order is made in which the children spend time with their father. The court must then consider whether it would be appropriate for a parental responsibility order to also be made.
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