This post looks at children’s rights to have a voice about whom they wish to live with, and whether their voice amounts to a vote.  This post presumes that the children under discussion are competent, and not suffering from a severe physical or emotional illness that makes it difficult or impossible for them to perform ordinary tasks of daily living, like going to school, getting a part-time school year or full-time summer job when of proper age, or functioning reasonably well with their peers, parents, siblings, teachers, and administrators. This post presumes heterosexual parenting, although nothing stated here would change if the hypothetical parents were same sex.

How old does a child have to be to decide which parent to live with?

In New Jersey, a child cannot absolutely decide with which parent to live, until s/he turns 18, which is the age of majority.  Before that age, the older the child, the more likely a Judge will pay attention to the child’s stated preferences for parental living arrangements. The trial court takes each family situation into account, on a case to case basis, and determines the best placement for the child, based on a finding of the child(ren)’s best interests.

A child under age 8 is presumptively not capable of expressing a preference, but the trial judge will still conduct a private interview of the child, with questions presented by each parent, and the judge’s own.

A child from age 8 to 17 is most likely going to be interviewed by the trial judge. These meetings are very important, as most judges take the children’s version of facts seriously, and will accommodate a child’s stated wishes if possible.  However, the judge is not bound to accept any child’s stated preference, if the child is under 18, and if the judge believes it is not in the child’s best interests (for example, an actively addicted parent is not going to get primary physical custody, and may not even get overnight parenting time, no matter what the child says).

Can a child refuse to visit the non-custodial parent?

Even if it is not the child’s desire, each parent has the right to see and spend time with their child.  A child’s persistent refusal to see his/her parent(s) usually will be met with a judge’s insistence on some type of mental health intervention:  child custody and parenting time forensic evaluation, child therapy, child centered therapy, family therapy, custody/parenting time mediation, divorce coach, parenting coordinator, parental therapy (individual or otherwise).

A child’s persistent refusal to engage in parenting time with one of the parents indicates something has gone substantially wrong within the family unit.  It could involve physical or emotional trauma, identification with one of the parents and alienation from the other, a persistent thought or belief that compels the child’s actions, a toxic relationship with one of the parents, a reaction to the parents’ toxic relationship with each other, or some other factors.

Therapy is a key that can unlock the child’s emotional doors, if the therapeutic intervention is of high quality, lasts for a sufficient time period, meets the child’s emotional needs, and helps the child sort out conflicting data and feelings

Therapy is an excellent tool, yet it has its limits.  Some children resist therapy.  Some feel traumatized by it.  Others get turned off once in it and refuse to give it another chance.

The relationship between the children and each parent takes many years to develop.  When things go off course, sometimes badly, the children and each parent may take literally years to try and solve the relationship problems. There is no guarantee of success.

Sometimes it takes until the children are in their 20’s and 30’s, sometimes with families and children of their own, until they are ready and able to reconcile with a parent they believe has hurt them.  In this situation, belief is equal to truth, even if the parent has a different truth. The alienated parent has to have unnatural patience and remain vulnerable, because the situation predictably will hurt him or her, repeatedly, and over a long time period.

I remember a case in which the child’s mother was dismissive of the father and spoke badly of him to the child throughout her early years.  The child became alienated from the father.  In therapy sessions, the only way the child could relate to the father was by hitting him.  The father told the child she was hurting him (which was almost certainly the point).  The therapist tried to get the child to engage in other behaviors so as to relate to the father in a less hurtful and more productive way.  It took years for the process to work.  The father stayed patient, engaged, and mindful of the therapist’s coaching.

See Part 2:

How old does a child have to be to have a say in custody?

How old does a child have to be to decide where they want to live?