I would need more information before I could provide you with a proper response. I suggest that you speak with a local attorney as soon as possible.
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The Court is required to consider all intelligent statements of preference that are made by a child. The court rules provide that as part of a custody hearing, the court must interview a child if age seven or older as to his (meaning his or her) preference for custody. The New Jersey Court has held that a 12-year old child has not attained that ripened discretion which enables him to determine conclusively what his own welfare demands. Callen v. Gill, 7 N.J. 312 (1951). Accordingly, up until the age of 12 years old, a child's preference is not conclusive, but the child's intelligent statements of preference would be one factor that is taken into consideration by the Court. You should discuss the matter in detail with a family law attorney. Kindly consider marking this answer as BEST if appropriate. Good luck to you.
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There is no set age at which time a child's preference will be determinative of the issue. It is the "best interests" of the child that the court must ultimately decide when determining issues of custody and parenting time.
In reality, the older a child is the more influence the child's preference will have on the ultimate outcome.
If you wish to secure a more reliable opinion you should schedule a consultation with an experienced family law attorney in your area who can take the time to review with you all the relevant facts and circumstances.
Kenneth A. White, Esq.
The Answer provided was based on the limited information provided, and represents information based on the law in general, not a legal opinion that can be relied upon. Before a formal legal opinion can be offered I would need an opportunity to review all possible relevant facts and circumstances.
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This question is as complicated as are children, and does not lend itself to an easy answer. The standard for determining who a child lives with is "best interst of the child". That is very subjective. The statue and case law provides for numerous determining factors and while the wishes of the child will be taken into consideration, and of course the older the child the more they will be considered, they are not determinative.
Generally, children that are older than about 12 could have an opinion taken into consideration if you are in a custody dispute. However, more often, some form a shared parenting arrangment is considered to be best for children. Depending upon the distance between the residences, it is usually better to have a plan that provides the children with substantial time at both residences. Depending upon the ages of the children and the familiy dynamic, on a practical level it may be hard to have your children chose between their parents.
On the other hand, there may be reasons why one parent is not a fit caregiver and that changes the way the case would be handled. If the parents are going to reside far apart,then during the school year, one or the other parent will need to be the primary parent. This is a complicated decision and if you are planning to divorce, or are already split up, you should consult with a family lawyer to determine what your options are and how to arrange for your children to spend time with both parents without making them chose between the two, or engaging in a lengthy and emotionally draining custody battle.
Disclaimer: The information you obtain at this answer is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Review of this answer does not in any way constitute legal representation,