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Can Your Child Decide which Parent to Live With?

Posted by attorney Bram Scharf

MYTH: At age 12 and older, children can determine which parent they wish to live with, during a contested Florida custody case.

TRUTH: Only at age 18 can an individual choose where or with whom he or she lives.

While we use the term, “custody," in this article because our clients do; however, Florida no longer uses the term “primary custody" anymore. The terms “majority timesharing" and “parental responsibility" are used instead. We point this out so that you better understand the current family law terminology and how it applies to your life.

Weighing the Child’s Wishes

While the Florida courts do consider the child’s wishes, they are absolutely not determinative. The courts weigh many factors as required by law and the child’s expressed wishes are only one factor out of several.

However:

  • The older and more mature the child, the more the courts weigh the child’s wishes.

  • The more “reasonable" the child’s wishes, the more weight they have.

2 Tests the Florida Courts Uses when Awarding Custody

1.Best Interests of the Child

You’ve likely heard this phrase before:

The court considers “the best interests of the child," when determining which parent the child lives with in a contested custody case.

“Best interests" means what the courts think it means, but the court does consider the following:

The established lifestyle of each parents, including, but not limited to

  • The child’s exposure to second hand smoke.
  • The parent’s work schedule and availability.
  • The willingness of the parent to allow child to communicate with other parent.
  • The parent’s living situation.

The established lifestyle of the child.

  • The health (mental and physical) of each parent and the child.

  • The age and gender of the child.

  • Whether there is any history of child abuse.

  • The established relationship with the child.

  • The ability to nurture the child and provide guidance.

  • The ability to provide for emotional and physical needs of the child.

  • The quality of schools available.

  • The child’s living situation preference.

If these factors make it clear which parent should be awarded custody, the court makes its decision accordingly.

2.Stability for the Child

If the above analysis doesn’t yield a clear answer, the courts use a “stability" consideration; and, the test is:

Which parent will provide the most stable environment?

  • When determining the most stable environment for young children, the preference is for custody to remain with the primary caretaker.

  • When determining the most stable environment for older children, the preference is for custody to be granted to the parent who can maintain the child’s established lifestyle (home, school, religious, and community factors.)

A Terminology Note: Timesharing (no More “Custody")

While we use the term, “custody," in this article because our clients do; however, Florida no longer uses the term “primary custody" anymore. The terms “majority timesharing" and “parental responsibility" are used instead. We point this out so that you better understand the current family law terminology and how it applies to your life.

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