Judges Decide Child Custody - Not Kids

At the end of the day, it's up to the judge to decide who gets the kids.

By , Attorney · Cooley Law School

It is a common misconception that a child that reaches a certain age can decide which parent to live with after a divorce or separation. Most attorneys find themselves dispelling this myth daily to new clients, especially ones with older children. The fact is until the child is 18, the only individuals who can determine custody are the child's parents, and if the parents can't decide, a judge will.

A Child's Opinion Is Only One Factor

The goal in every custody case is for the court to evaluate what is in the child's best interest in deciding custody and parenting time. Every state has a set of factors for judges to assess when determining how to allocate custody in divorce and separation cases.

In most states, courts may consider a child's opinion, but only if the judge believes that the child is mature enough to express a reasonable preference.

In addition to a child's opinion, the court must also consider a variety of other factors before deciding where the child will live after a divorce or separation. For example, most states evaluate:

  • the love, affection, and relationship between the child and each parent
  • each parent's ability to provide the child with food, clothing, and a safe home
  • the health and mental wellness of each parent and the child
  • each parent's willingness to facilitate a relationship between the child and the other parent
  • whether there is a history of domestic violence or child abuse
  • how long the child has been in a stable home and the parent's desire to continue that arrangement
  • each parent's preference
  • the child's age and individual needs
  • whether either parent has a history of drug or alcohol abuse
  • if there's a history of either parent interfering with the other's parenting or visitation rights
  • each parent's moral fitness, and
  • the child's educational, social, and community record.

Why Children Can't Decide Custody

Children dealing with divorcing or separating parents already have enough to worry about knowing that their parents are no longer living together. Most kids wonder where they will sleep every night, whether they will have a bedroom in each of the new homes, where "home base" will be, and whether they did something wrong to cause the divorce.

Children thrive in stable, loving, and healthy environments, so when parents divorce, it's the court's job, not the child's, to decide which parent can provide the best environment for the child.

There are many reasons why judges don't automatically accept a child's preference for custody. For example:

  • a child may choose to live with the parent who has more money, a nicer vehicle, or a bigger home
  • the child might be torn and decide that living with the parent who needs the child is important, even if that parent isn't prepared to care for the child full-time
  • a child may choose to live with the "Disneyland" parent because that parent provides gifts, vacations, or large allowances during parenting time, or
  • the child may want to live with one parent over the other because one parent alienated the child from the other during the divorce.

In other words, a child's preference is not always what the child needs, and it's the court's job to ensure the custody arrangement will best meet the child's needs.

Work Together

In nearly every custody case, the best option is for the parents to come together and create a parenting plan that benefits everyone the family.

Parents can often agree on a custody arrangement and also develop an acceptable visitation schedule between the child and the non-custodial parent. The court may review the agreement, but if it's in the child's best interest, the judge will almost always approve it.

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