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Effect of Child’s Preference in Custody Matters


Family in need of attorney

The Gainesville Family Law Attorneys of the Law Office of Alba & Yochim P.A. recognize that it can be tough for parents to know what impact a particular factor may have on the outcome of a family law proceeding involving child custody. A common area of inquiry relates to the effect that a child’s preferences or desires can have on the court’s evaluation process.

In establishing an initial order of parental responsibility, or modifying a previous order, including the creation, development, approval, or modification of a parenting plan, the primary consideration is the best interests of the child. As provided within the Best Interest Criterion set forth by Florida Statute §61.13(3)(i), the court shall evaluate, in addition to other factors:

The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.”

To better understand the role of a child’s preference in custodial determinations, it is helpful to view the statute in two separate parts.

First, the preference of the child must be ‘reasonable.’ For example, a child’s desire to reside with one parent over another, which extends from a divorce proceeding, is far more likely to be considered reasonable, than in circumstances where the child wishes to live with a parent that they have never met or had only minimal contact with. Residential, financial, and locational factors may also play a role in the court’s assessment of reasonableness. Further, the reasons for the child’s desire for a particular arrangement will also be very important. If the reasons are not for reasons the court finds are in the child’s best interest (desire to live with one parent over another because they live next to my girlfriend vs. because they are in a better school district) the court will disregard the child’s wishes in most instances.

Second, the court must evaluate the child’s ability to express a preference, based upon that child’s level of intelligence, understanding, experience. Parents often inquire if there is a specific age at which the court would allow a child to express his or her preference to reside with a particular parent. However, because the circumstance of one child can vary greatly from another regardless of age, there are no age-based rules regarding a child’s preference. Rather, the court must make specific findings by examining the unique aspects of each child on a case by case basis. However, a general rule of thumb is usually age 12. See also, ‘When can a child decide with whom they want to live?

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It is important for parents to note the difference between establishing an initial custody order, and seeking modification of an existing order. Modifications require a substantial change in circumstances. While a child’s preference, in and of itself, will rarely serve as the sole grounds for a substantial change in circumstances, there are situations in which the desires and preferences of a child can play a role in a modification proceeding. For example, the court must evaluate the child’s preference in (contested) relocation matters, as provided by Florida Statute §61.13001(7)(d).

Parents should keep in mind that a child’s preference is only one aspect of the court’s analysis, and all relevant factors must be taken into consideration in determining what is best for the child. Parents must remember that the authority to make custody determinations ultimately resides within the judge that is overseeing the matter. Although case law provides some guidance, the circumstance of a particular child or family rarely mirror those of another. As such, having an experienced attorney to aggressively advocate on your behalf, can make a profound difference in the outcome of a family law proceeding.

If you have a question or concern regarding a child’s preference in a custody matter, the child custody lawyers of the Law Office of Alba & Yochim P.A. want to help you attain the peace of mind and stability that you and your family deserve.