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.

When I represent the parent that is opposed to the modification of custody I often request a temporary hearing and concede to the modification of custody on a temporary basis since the probability of the child’s selection prevailing is so high. This gives the child an opportunity to experience what it will be like living with the other parent for a period of time. Sometimes the child realizes that the grass isn’t so much greener and decides to remain with the initial custodial parent.

A child who at least 11, but not yet 14, has the right to have his or her custodial wishes made known to the Court. If the issue of custody of a child who is 11, but not yet 14, is before the Court pursuant to a modification of custody (rather than an initial determination of custody), then there must be sufficient evidence in addition to the child’s selection for the modification to prevail. The cumulative evidence must show that there has been a “material change of condition or circumstance” since the previous custody determination was made.

Custody cases involving a child’s selection can be tough on parents. The child is essentially rejecting one parent in favor of the other. I know of no other way to look at it. Furthermore, these cases are frequently filed by parents that are more interested in the financial benefits that result from having physical custody of the child than they are in doing what is in the child’s best interests. When I suspect that a child is being pressured or unfairly coerced by a parent with impure motives I will frequently request a guardian ad litem to independently represent the child’s interests in the case. This adds additional expense, but it is often worth it to ascertain the actual desires of the child.

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