As you go through a divorce, you know that you and your spouse will have to divide physical and legal custody of your child. Legal custody refers to the decision-making abilities that you have, so the child will likely be uninvolved in this process. It’s common simply for courts to acknowledge that legal custody is shared between both parents and that they have to cooperate regarding things like medical care or where the child goes to school.
But when it comes to physical custody, a child may have a strong preference. They may want to live in a certain home with one specific parent. Are they allowed to make this decision, or is it up to the court?
Considerations and age
To start with, the child’s preference is just one of the factors that the court will consider. It can play a role, but the court has no obligation to do what the child wants. They will also look at other factors like the parents’ ability to care for the child, their living situations, their financial situations, their roles in the family prior to the divorce and much more. Ultimately, the court will do what it believes is in the child’s best interests, which may or may not line up with what the child wants.
The second thing to remember is that the child’s age plays a role. It is more common for the courts to ask a child’s preference if they are a teenager, for example. A senior in high school may have much more say in where they live than a toddler. Children have to be old enough to fully understand the decisions they’re making and the potential ramifications.
Going through a custody dispute can be complicated, so it’s very important to understand all of the legal options you have at this time.