Tuesday, February 4, 2014

Can an Older Child Decide Which Parent to Live With?

The answer is — it depends.

Divorced parents of an older child are often confronted with the child’s desire to live with the noncustodial parent. In some ways this desire stems from the natural developmental need to be somewhere — in fact anywhere— other than where the child is are right now. In other cases, an older child wants to strengthen the bond with a noncustodial parent. Either way, parents often want to know how much of that decision is up to the child.

How the court decides where child should live

Ultimately the court is the agent of the child’s best interest until the child reaches the age of emancipation. When a child reaches an age and maturity level such that the court considers the child’s opinion relevant, a judge can choose to hear the child’s direct testimony in a private setting. Criteria include:

The maturity of the child — there is a wide range of emotional readiness in early adolescence and this is a major factor in the court’s decision to hear directly from the child

The reasons the child presents for wanting to move — the court assumes a child does not necessarily know which home environment is best

The effect on siblings

The child’s best interest — including any potential change in economic circumstances, proximity to extended family and educational opportunities

If the child expresses a desire to move but the court deems the child not yet mature enough to make this decision, the court can appoint a third party to interview both parents, the child and siblings and anyone else involved with the child.

If a move involves relocation

If going to live with the other parent involves relocating more than 50 miles from the current residence, the move depending on the circumstance, may require a court order. In addition, if the move requires a modification of the parents’ custody or time-sharing agreement, this may also require a court order. Even if all parties involved agree that the move is for the best, it is essential that the change be recorded in a written agreement and submitted to the family court for approval. This measure prevents cases of parental kidnapping or an effort by one parent to alienate a child from the other parent.

Should you require legal assistance with any post-divorce modifications, the experienced and knowledgeable family law attorneys at Murano & Roth are available to give personal attention to your specific case.

This blog posting and the information on our website is for general information purposes only. Nothing within it, within any responses, comments, emails, answers, blogs or attachments, should be considered legal advice. Our website and our blogs, including this blog, does not form any attorney client relationship, and this office does not represent you in any way. Keep in mind that since only very general information is provided on our website and within our blogs, you cannot rely upon any of the information as legal advice, as it might not apply to, or be accurate relative to your specific situation and facts.

By Jason D. Roth

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