Understanding the Role of Minors in Divorce Proceedings: Can Children Decide Where to Live?
One of the questions that divorced parents or parents in divorce proceedings ask themselves is the age at which children can decide who they want to live with.
It is recommended that parents make the appropriate decision, taking into account the needs of their children and their possibilities of caring for them.
But if this agreement is not possible, we explain the rules applicable to the intervention of a minor in a separation or divorce process.
Child Custody Rights: Can Children Decide Where to Live?
While courts will consider the preference of older children, especially teenagers, when determining custody, children under 18 ultimately do not have the legal right to solely decide which parent to live with – that decision rests with the court, based on an evaluation of the child’s best interests.
A child’s stated preference is only one factor among many that judges weigh, like each parent’s fitness, the stability of each home environment, and the child’s needs.
Can my child decide who he wants to live with after the divorce?
If your child is of legal age, the answer is YES, even if he or she is not financially independent.
In marriage proceedings, adult children can decide which of the parents they want to live with.
Now, the Judge will agree on the measures regarding alimony, use of the home, etc. until you have financial independence.
In any case, the adult must express to the Judge his desire to live with one or other of the parents.
Now, if your children are minors the answer is NO, they cannot decide who to live with.
In the process of divorce or modification of judicial measures, the Judge will be the one who decides the care and custody of the minors, in accordance with the principle of the best interests of the minor.
However, minors have the right to be heard at trial, through the judicial examination of minors.
We explain it to you below.
Can the minor child be heard in the event of a divorce?
YES, the minor child has the right to be heard, according to his maturity and age, in judicial processes that affect his care and custody.
The Family Judge will ensure compliance with this right of the minor to be heard when measures are decided on his custody, care, and education.
This right is practiced through the judicial examination test, which consists of a conversation between the Judge and the minor, in the presence exclusively of the Prosecutor.
The judicial examination is usually completed with an expert report from the Judicial Psychosocial Team.
At what age can my minor child be heard in court?
Although, as we have told you, your minor child cannot decide which parent he or she wants to live with, he or she must be heard in the marriage process:
- In any case, if you are over 12 years old. That is, by legal imposition, minors who are 12 years old or older must be heard by the Judge.
- When the minor has sufficient judgment, if she is under 12 years old but is mature enough to express her desire, the judicial examination may be proposed. It will be the Judge who assesses whether the minor has sufficient capacity or maturity to decide if she wants to live with his father or with her mother. In reality, there is no age limit for a minor to be heard; it will be enough for him or her to have sufficient capacity and maturity.
Ultimately, the minor will be heard but the final decision will be made by the Judge , following a report from the Public Prosecutor’s Office.
Is the opinion of a minor binding when deciding who they want to live with?
Although the minor has the right to be heard, the Judge has the obligation to look after his or her interests.
We must not confuse the minor’s right to be heard with the fact that their wishes are decisive in the resolution that puts an end to the judicial process.
Of course, your opinion will be taken into account when determining the custody regime, as long as the Judge considers that the opinion is well founded, but it is NOT binding on the court decision.
The desire of the minor is a relevant element, but it will be the Judge who, assessing other aspects (age, maturity, relationship with parents… will adopt the appropriate measures for their development.
1-What if a child doesn’t want to live with a parent?
If a child is older, the court will consider but not be bound by their custody preference; custody awarded based solely on a child’s wishes is rare barring proof the parent seriously endangered the child.
2-Can a 12-year-old decide which parent to live with in Florida?
No, in Florida the wishes of a 12-year-old may be considered but are not determinative – the court decides custody based on the child’s best interests rather than their stated preference alone at that age.
3-Do I have to let my ex know where I live?
Unless the custody order requires notification, you typically do not have to inform your ex-spouse of a change of address, but it facilitates scheduling so is considered good co-parenting practice.
4-Does my ex-husband have to tell me where he lives?
Generally no, unless specified in the custody arrangement due to safety provisions or the need to exchange the child, ex-spouses have no obligation to keep each other informed of where they reside.