Age 12: Not A Magic Number

The law is full of misconceptions, and one of the most common ones that our office receives calls about is the role a child plays in a custody case. Many people seem to believe that when the child reaches age 12, they have the choice of which parent to live with. While age 12 does have some significance in custody cases, it does not give the child license to make that decision entirely on their own. It does, however, allow the child to express a preference, and the way the child chooses to do that may largely affect the outcome.

It is often a joke with lawyers that if we allowed children to make their custody decision, the child would pick whichever parent allows them to jump on the bed and have ice cream for breakfast. That is a slight exaggeration, but judges acknowledge that many 12-year-olds do not have the maturity to make the best decision for themselves. Several factors go into the judge’s decision on how much weight to give the child’s preference, such as the child’s age, their reasons for their preference, and the judge’s personal sense of the child’s maturity level.

If the child has good reasons for picking the parent they want to live with, a judge will most certainly consider the child’s preference. Good reasons include the school situation, the home environment, and, to some extent, the child’s community record. Reasons that will most likely not persuade a judge include picking the more lenient parent, being closer to a girlfriend or boyfriend, or, like the old joke goes, the parent who lets the child eat pizza for every meal. Ultimately, the case largely leans on the child’s ability to make a thoughtful, reasonable argument to the judge about what living arrangement is in the child’s best interest. Below are some examples of good and bad arguments by a child for their preference.

What may work: “Your honor, I want to live with this parent because I believe this environment is best for my personal growth and educational opportunities.”

What will probably not work: “Your honor, this parent is stricter than the other, and therefore I do not wish to live with them.”

A child’s living arrangements is an extremely important decision, and courts prefer to have the child involved as much as possible. Allowing a child of 12 years or older to be able to show a preference and giving them the opportunity to speak on their behalf achieves that while still giving the court enough control over the situation to make the decision that is in the child’s best interest. We often hear the misconception that the child has control over their custody arrangement, and while they do play a role, it is not as great as many people believe. If you or someone you know has a custody problem, call the Law Office of Matthew S. Poole. Our office has the experience and knowledge to properly address your case and achieve a fair result. With any questions, call our office at 601-573-7429.

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