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 have a say in custody?

A child older than 8 gets a voice in custody and parenting time discussions, with therapeutic intervenors as described above, and with a trial judge if necessary.  The child does not get a vote.  However, by age 16, the child is going to be deemed mature enough and sufficiently self-possessed that, like the proverbial big dog, the child will get to go where he or she wants.

I had a case in which a 13-year-old child was deemed of sufficient maturity, wisdom, poise, and self-possession, and could articulate clearly what she wanted and why, that the trial judge took the child’s word for what the child believed was in her own best interests.  The father was angry, mean, vindictive, physically violent, and constantly running the mother down in the child’s presence. The child had begun cutting herself and ran away from the mother’s home.  The child realized she needed help.

The mother was very compassionate and did her best to support her daughter’s needs.  With the help of excellent therapy, the child was able to understand that she had absorbed the tension and terrible dislike that each parent had for the other.  She could identify that her mother was there for her, whereas her father was selfish and considered his daughter an ego-extension of himself.  Basically, it was all about him, and the child knew it.  With the help of the therapist, the child was able to prepare for her meeting with the trial judge and came to court ready to tell her own story, and no one else’s.  The trial judge was moved by the child’s statements and adopted what this 13- year-old requested.

That child is now 19 years old, attending college, and leading a successful life.  Her father, unfortunately, is not part of her life. He could not tolerate his wife’s or his daughter’s independence, and strongly believed he was better off without the daughter, unless she would bend to his rules.  That is not going to happen.

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

This question is analogous to “Can a child refuse to visit the non-custodial parent?” Child custody determinations, whether by the parties’ agreement, a final divorce judgment, or a filed consent order between the parties, spell out in detail with whom the child shall reside “primarily”, meaning the majority of overnights, and with whom the child shall have parenting time on a scheduled basis.  A primary custodial parent (sometimes called a “physical custodial parent”) has the job of feeding, clothing, housing, transporting, medical/dental appointing, and all related responsibilities.

The parties have the power to share those responsibilities, and a judge has the power to direct an equal time and responsibility share, yet that is not the norm.  Most people decide for themselves, or a judge does it for them, that one of the parents has the historic role of taking care of the children, whereas the other simply does not.  We cannot reinvent ourselves so easily, if we have not done something for a very long time, perhaps ever.

Some parents state in their settlement agreements that the children “shall” be raised in X County or within 25 miles from Y High School, because they mutually agree it is important to have that happen.  When one party changes his or her mind, the issue can get contentious.  The parties’ decision has been memorialized, yet a judge has to make a decision as to what is in the child’s best interests, and it is theoretically possible that what the parties decided some years ago no longer represents that best interest.

While sometimes fathers take on primary custody of children, more often, in my experience, it is the mothers who do so.  Perhaps the fathers are the bigger wage earners.  Perhaps the mothers worked fewer hours so they could take care of young children and be there for pick-ups and drop-offs.

When parents separate, sometimes the fathers feel they don’t want to be cut off from children, and they have a deep fear this is going to happen to them.  In my experience, courts are not looking to cut children out of anyone’s life.  If a parent is interested in quality parenting time, even in having more time with the children than ever before, most of the time the mothers will not stand in the way, and if they do, the therapeutic intervenors or the judges will persuade them otherwise.

It is natural and healthy for children to have excellent relationships with both parents.  

That said, the issue of “where” the children will live is important.  It could involve a discussion of “the parents will rotate in and out of the house and the children will reside there full time.”  This is an atypical arrangement, yet it works for a number of parents and children.  It is called “nesting” and, for the right people, it is an excellent choice.  The children are disrupted the least and feel supported the most – if their parents can agree on this arrangement.

“Where” also can include relocation across the state, across the river to another state, across the country, or across the world.  This topic is vast. Suffice it to say, New Jersey’s law on relocation of children has had a sea change in the past year.  The legal standard is now “the best interests of the children”.  And, like custody, that means a child has a voice, a say, and, by age 16 or so, a decisive say in where s/he wants to live.

The older the child, the higher the degree of the trial court’s deference to the child’s wishes regarding “where” to live.

CONCLUSION

If you or your family, friends, and loved ones are having a crisis or concern about New Jersey child custody, parenting time, parental alienation, child relocation, or any variation on those important themes, it is crucial for each parent to get the benefit of his/her own separate legal counsel, someone trained in family law, and who has acquired the necessary knowledge and experience to see you through.  You also need someone conversant in Alternative Dispute Resolution, negotiations, mediation, arbitration, collaborative law, as well as traditional trial law.  If you have questions about your circumstances, please call us at 609-683-7400.  We will listen to your facts, explain the law, and help you attain the social justice to which your children and you are entitled.  Call today.  You will be glad you did.