Custody: does the child have a say?

One of the most commonly asked questions of family law attorneys is “How old does a child have to be to decide where they want to live?”  In Missouri, the answer is that the court may consider a child’s wishes at any age the judge deems proper, but the child’s opinion does not control.

Most children do not want the responsibility of making such a choice.  Many children try to please adults, often giving them the answer the child believes the adult wants to hear.  So if a parent asks a child who they want to live with, the child will almost always say they want to live with the parent asking the question.

This is why many professionals will tell parents they should never ask a child this question.  These same professionals, such as counselors and social workers, will tell you that the question puts undue pressure on a child.  The question causes them to pick between two people they usually love very deeply, which is something most children or even grown ups would never want to do.  The question also can cause the child to think that, if they have to choose, they can’t be allowed to love both parents anymore.

Even where a child has a preference, the court still must explore why the child is making their choice.  Is it based upon abuse by one parent?  By undue influence by a parent?  Outright coercion or bribery?  Because one parents rules are easier or more relaxed or simply a better fit with the child?  Because the child has more fun with one parent, or one parent is getting the family home, or one parent got all of the video games?  Just by going through this brief list of possibilities it is easy to see how difficult it is to distinguish between “good” reasons why a child would choose one parent versus reasons that really should have no influence over a judge.

One final issue that most people don’t consider when looking at this issue is how does allowing a child to have influence over this decision affect the ability to parent the child in the long run.  A child whose input is taken into account one time may believe that their opinion will always be taken into account.  Such a child may decide that they can use this to their advantage.  That child may tell Mom “if you don’t get me the latest and greatest cell phone with unlimited everything I will go and tell the judge I want to live with Dad.”  How do you reign that child back in, especially when the other parent may have felt betrayed initially but know feels as though their child is back to being normal.  It can become very problematic.

Involving the child in custody decisions is rarely a good idea.  It puts unwanted pressure on the child, it rarely results in much useful or insightful information for the court, and it can result in giving a child more power than they can handle.  Rather than ask when can a child make a custody choice, ask why you should involve the child at all.

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