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Does a Child’s Preference Affect Custody?

The basic standard in all custody determinations is “what is in the best interests of the child.” It is a broad phrase that takes into account a number of factors the court will examine in ordering time-sharing and visitation rights. The term “custody” is out of favor with Florida legislators and courts, which prefer to use the phrase “time-sharing” or “parenting time”.   One of the factors in determining time-sharing is the preference of the child in spending the principal amount of time with one parent over the other.

Florida is a state where the child’s preference is considered, but it is only one of numerous factors the courts are to utilize when determining a time-sharing schedule.  Why don’t children get the final say in where they will live?  Too many factors can influence a child such as a parent who constantly berates the other parent, subtly drops suggestions that the other parent does not love the child as much or hints how devastating it would be if the child lived principally with the other parent. In other cases, a child may want to live with the less strict or more permissive parent and that can be detrimental to the child’s conduct, school work or interaction with others.

This can be a difficult decision for the child and impact you as well, regardless if you are the preferred parent or not. Consult with an experienced family attorney regarding this issue if your child expresses a desire to reside with you or the other parent.

If a Child’s Preference is Considered

Courts will listen to the child’s preference in a time-sharing arrangement provided the child displays sufficient maturity, experience and intelligence. Florida law imposes no minimum age but obviously the older the child, the more he or she may be able to intelligently and reasonably express and explain a parental choice.

Should the court be willing to consider the child’s preference, it may order the child be interviewed and questioned by therapists or social workers experienced in these matters or appoint a guardian ad litem (GAL). They will help the court decide if the child has sufficient intelligence, maturity and experience to express a choice as well as other factors that may be influencing the child’s decision. Of course, a judge can also personally question the child in this regard. A GAL represents the interests of the child and can also testify regarding the child’s preferences after considering other factors pertaining to the child’s current time-sharing situation, including determining if a parent is using undue influence.

Should the court be satisfied that the child’s preference will be considered, it may also examine:

  • Whether the preference will disrupt an established routine that has shown stability and structure in the child’s life
  • How long the child has expressed this preference
  • If other siblings are involved, who will be separated from the child?
  • If the current parent, who has primary time-sharing rights, is providing the care and attention that the other parent may not be able to match or provide

Some of the reasons for a child’s preference may be that the other parent has a larger house and bedroom for the child, is closer to sports activities or the child has friends that attend a school in that district.

Other Factors a Court Considers

A court may take a child’s preference into consideration if mature and old enough, but the court is also required to review numerous other factors, including:

  • The capacity of the parents to provide the child with medical care, food and basic needs
  • If a parent is interfering with the other’s right to visitation or time-sharing or the bond between that parent and child
  • The emotional ties of each parent to the child evidenced by intimate knowledge of the child’s needs, hobbies, interests and goals
  • The current community, school and home and parent’s involvement in the child’s school and after-school activities and is familiar with teachers, coaches and friends
  • Both parents’ moral fitness, health and mental stability
  • If the present arrangement is providing stability and structure and it is desirable to maintain it
  • Any evidence of child or domestic abuse or false allegations of such

Retain an Experienced Family Attorney

These are factors used by a court in the initial divorce proceedings. If you are seeking a modification of an existing time-sharing order, you do have to demonstrate a substantial change in circumstances and that such modification would be in the child’s best interest. Upon determining there has been a substantial change in circumstances, the court will then use those factors listed above, along with all other factors listed in Section 61.13(3), Florida Statutes, to determine whether the modification is in the child’s best interest.

A family lawyer who has extensive experience in filing and contesting time-sharing modification orders is essential, given the complexities in these matters. Before filing a request for modification or if you are served with a petition for modification, discuss the issues involved with a family attorney who can adequately explain your legal rights and options.