When Can Kids Say where They Want to Live?

Child custody is the hardest part about almost any divorce.

Parents, both sincerely believing they are doing what’s best for their kids, sometimes fight about where kids live and how much time they spend with the other parent.

And when parents fight, they sometimes try to win by involving their kids. They ask their kids where they want to live; and, when kids tell a parent what that parent wants to hear (that’s what 99% of kids do), the parent uses that as ammunition in the custody battle.

You see the problem with this scenario, right? Please, tell me you see the problem.

It’s unfair for parents to use their kids this way and make them choose between parents. Involving children in their parents’ fight in such a direct way ends up harming kids.

Please, don’t do this to your kids. Let them be kids.

But What about Kids Who Really Know Where They Want to Live?

There are situations in which kids’ opinions need to be heard. This is especially true when kids are a bit older and more well-reasoned about things.

In these types of situations, a judge will often appoint a guardian ad litem (GAL) to talk with the children and conduct an independent investigation about what’s going on. If the kids are mature enough, the GAL will ask them what their preferences are and then relay those preferences to the judge.

A GAL is much more than an information conveyor, though. A GAL will also tell the judge what he or she believes is in the kids’ best interests. That might be the same as the kids’ preferences, and it might not be. A lot of it depends on how thought out the kids’ preferences are.

Specific Utah Law about at what Age Judge’s Should Consider Children’s Preferences

There is specific language in Utah law regarding when a court will give added weight to a child’s preference about where to live and what type of time to spend with each parent.

The language is found in Utah Code 30-3-10(1)(e):

The court may inquire of the children and take into consideration the children’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the children’s custody or parent-time otherwise. The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.

So, there is a line at fourteen where a judge will give a kid’s opinion added weight, but it will never be the single controlling factor in the judge’s decision.

Of course, all this assumes the judge even considers a child’s preference. Like it says in the law, the judge doesn’t have to (“[t]he court may inquire”).

And, many times, the judge, even after being told a child’s preference, will specifically say that preference had nothing to do with the ultimate decision. (Candidly, judges will often do this to ensure there is no retaliation against kids for “taking sides” in the divorce.)

What Does All This Mean?

What all this means is your kids’ preferences may not play a big role in determining the outcome of child custody.

Other considerations may, and probably will, play a much bigger role.

This said, a child’s preference can be an important factor in some cases. How to address those preferences is something you’ll really need to talk through with your attorney.