Can a Child Choose Which Parent To Live With?

For married parents who are divorcing, or unmarried parents who don’t share a household, arriving at a custody arrangement for their children is often challenging. Parents who have been living with their child full-time worry about becoming merely a “visitor” in their child’s life after the custody decision, or about the child’s well-being while they are in the other parent’s home.

Much of the time, often with the help of their attorneys or a mediator, parents are able to reach an agreement about custody issues, including where the child’s primary residence will be. Sometimes, however, parents find themselves at an impasse about where their child will live or how much time the child will spend in each parent’s home. They start to think about what factors a court might consider in determining physical custody—and how their child’s preference affects the decision.

That is why one of the most common questions we hear in divorce and child custody cases is, “Can a child choose which parent to live with?” The answer isn’t a simple “yes” or “no.”

How a Child’s Preferences Affect Custody Determinations

In Maryland, Virginia, D.C., and other jurisdictions, courts decide custody of a child based on “the best interest of the child.” Courts in every jurisdiction consider a number of factors when deciding what is in a child’s best interest. While the specific factors may vary somewhat, they tend to be similar, and most jurisdictions take into account a child's preferences under some circumstances. It also might be necessary for a court decision to reflect whether and how a court considered a child’s wishes if international enforcement could be needed, as some countries require this formality. However, it is important to remember that even in states that are required to consider a child’s wishes, the child’s preference regarding custody is only one of the factors a court considers.

It’s also worth noting that when a court does consider a child’s wishes, it is not simply a matter of asking the child which parent they prefer to live with. (Asking a child to essentially choose between their parents is certainly not in their best interests!) When a child expresses a preference regarding custody, the court takes into account details such as:

• The child’s maturity and their social and emotional development
• The child’s reasons for wanting to live primarily with one parent or the other. For instance, does the child prefer to live with one parent because that parent is lenient and lets them do what they want, or because that parent provides structure and security?
• Are the child’s expressed reasons for preferring to live with one parent significant, such as a desire to continue in their existing school?
• Is there any evidence that the child has been manipulated or pressured into expressing a preference by a parent, or by someone else on a parent’s behalf?

In other words, not all custody preferences expressed by children are created equal, and courts generally give more weight to preferences that are grounded in the child’s overall best interest.

When Can a Child Choose Which Parent to Live With?

In Maryland, there is no age at which a child can choose which parent to live with. However, the older a child is, the more likely their preference will be considered. A child who is 16 years of age or older gets to have input into the court’s decision about where they should live. In order to prevent a parent’s presence from affecting the child’s honest expression of their wishes and experience, the judge can interview the child without the parents present. A younger child may also have their preferences considered under some circumstances—more on that below.

At the age of 16, a child who is subject to a Maryland custody decree can, themselves, petition the court for a change in custody if they prefer to live with the other parent. However, just as with an initial custody determination, the child’s wishes are not all that matter. The court will still consider all the other factors that have to do with the child’s best interest, such as the fitness of the parents and any custody agreement that exists between the parents.

It is less common for a Maryland court to consider the custody preferences of children who are under 16, but preteens and younger teens may have their wishes taken into account, especially if they appear to be emotionally mature. Often, those wishes come to the court’s attention through a best interest attorney who has been appointed for the child or through a court-ordered child custody evaluation. These measures allow the court to learn of a child’s preference without the child needing to submit to an interview with a judge or testify in open court.

Parental Influence on Child Custody Preferences

As a parent, it can be tempting to try to tip the balance of a child’s custody preferences in your favor by trying to be the “cool” or “fun” parent or plying them with gifts. In the long run, this is rarely good for your child, whether or not it leads to them asking to live with you. It also rarely is good for your relationship with the child in the long run, as children tend to be fairly astute to manipulation. You should also be aware that courts frown upon actions by a parent that could be interpreted as attempts to manipulate their child.

The best approach is to provide your child with the love, support, structure, and guidance that they need, and to work with a family law attorney who is experienced in Maryland child custody matters. To learn more about the impact of a child’s preferences on custody, contact Strickler, Platnick & Hatfield to schedule a consultation.