I am divorced 5 years, sharing joint legal/physical custody (no child support required by either parent) of our 12 year old. I'm remarried 2 years, my ex recently remarried. I am a physician and my husband is going to medical school next year in which we will have to move out of state. My ex-husband is a stay at home dad but financially secure as he married into some money. My daughter has half-siblings at both households. Neither her father nor I have financial, legal, drug, or any other "issues." My daughter has a good relationship with both of us so there is no "clear cut" parent that is the "better" choice. How much impact does the child's wishes have? If she chooses to move out of state is it recognized by the court or is more weight put on staying where she has been living?
Divorce / Separation Lawyer
The court will usually consider the childs wishes around 14 or if there is a GAl involved that will control. take care.
Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Massachusetts. Responses are based solely on Massachusetts law unless stated otherwise.
9 found this helpful
1 lawyer agrees
Chapter 11 Bankruptcy Attorney
It's not a hard and fast line.
Somewhere around that age the court starts listening to the child's preferences (assuming that the court is convinced that the child isn't being manipulated), gaining increasing weight until somewhere around sixteen when it becomes highly improbably that the court won't follow the child's wishes.
It is a horrible thing to do to the child, though, to suggest that she has a say in the matter. If she expresses preferences, that's one thing, but to put it her, well, forces her to choose.
Family Law Attorney
There are 2 different questions here. Nevada law has no age where a child's preference is considered re custody. Each judge makes their own call on whether or not to consider a child's wishes, and at what age it may be relevant. But it sounds like you are asking in the context of relocation. You will have to get primary first. A child's wishes can be considered for the purpose of relocation. If you are a practicing doctor here, I am not sure how you will make a case to relocate for your husband to attend medical school. That furthers his interest; not yours. You should meet with an attorney who specializes in family law and has both successfully had relocations granted and defended against them. Only after a consult with all relevant facts discussed can you be given an intelligent analysis.
Family Law Attorney
When you file your motion for relocation, because you have joint physical custody, there is a case called Potter, that states that the court needs to look at whether it will be in the child's best interest to live with you in the state you are relocating to, or to remain in Nevada with dad. You can ask to have the child undergo an evaluation, with a psychologist or other specialist to determine whether it is in the child's best interest to move or remain with dad. There are also other therapists/counselors the court has used to determine whether relocation is in the child's best interest. This is how your child will state her opinion to the court -- through the person retained to conduct the evaluation. Most of the judges will not speak directly to the child.
The court does have what they consider teenage discretion in listening to a child's opinion of what they want, however, it does not mean that they are going to make their decision based solely on the wants of your child. When it comes to children, there is no set age of when a court can decide to use teenage discretion, in most cases 12 is somewhat young, however, if your daughter has a strong desire to live with either of you, it is definitely best to have to request that she speak to someone. The court will also look at the maturity level of the child, especially before the child is 14, or so.
The other things you need to start compiling is your proof to use at an evidentiary hearing (trial) that it would be in her best interest to leave. You should also attempt to work something out with your ex before filing a motion.
Lastly, the family court does not move fast, it is a process with relocation cases, therefore, as soon as you know you are moving, make the request so that a decision can be made before you leave.
Ultimately, whichever parent maintains custody over your child will become the primary custodian.
Family Law Attorney
Any time the "wishes of the child" are going to be considered, the expression of a choice must be an "intelligent" one. This means that there has to be a meaningful reason given. Teenagers do not always make choices that are in their best interests. So if your daughter wishes to move with you, she has to be able to tell the Court, a Guardian ad litem, or achild interviewer why, and the reason has to be persuasive to the Court. Your relocation case is a difficult one due to the fact that he is available to care for her all of the time and in the new state, you will be less available due to your work. Separating a child from their school and friends is a very difficult thing to convince a Court to do. Also, Nevada has a medical school, so the reason for the relocation might not be persuasive to the Court. In order to grant your relocation, the Court would have to find that it is better for your daughter to be with you as the primary parent in the other state than remain here in Nevada with him as the primary parent. Obviously more facts would be needed for a full evaluation of the merits of a relocation, but if you are counting on your daughters statement that she would prefer to move with you to carry the day, I would reconsidering attempting to relocate.
Personal Injury Lawyer
All the above answers are right. In my limited family law experience, the rule of thumb is age 14, but the court can consider maturity and give more weight to a younger child's opinion if the court chooses. Also, the child does not simply dictate. Their opinion is one factor.