March 27, 2013
Can my child select his or her custodial parent?
A child who has reached the age of 14 has the right to select the parent with whom he or she will live. The selection, however, must be found by the Court to be in the child’s “best interest”. There is a presumption that the child’s selection is in his or her best interest. This means that the party opposing the selection will have the burden of convincing the Court that the selection is not in the child’s best interests. In my experience the opposing party has an uphill battle.
A case seeking to modify physical custody may be filed solely on the ground that the child is over the age of 14 and wants live with the other parent. When custody is modified based solely on the child’s selection there cannot be another custody action filed for a period of two years following the selection. This means that the child cannot change his or her mind and return to the other parent’s custody within two years of his or her previous selection unless there is some additional evidence to support a change of custody. For this reason the child should be certain of his or her selection.