Can the children decide with which parent they want to live?

Many clients come to me in the midst of a nasty divorce or child custody battle and propose what they consider to be a very simple solution:  why doesn’t the judge ask the child and let the child decide?  As you may imagine, it is not that simple.  Preference of the child is just one of many factors the Judge may consider when determining with whom the child should primarily live.  People who do not work in the system tend to have a misconception about the weight of this one factor.  Judges may look at the child’s expression of a preference as suspect.  The Judge could be suspicious for any one of many reasons.  The Judge may think the parent who is going through the emotional trauma of a divorce may wrongfully rely on the child to make the decision.  The child is still, after all, a child and should not be making such important, adult decisions.  The Judge may think the child is concerned about the parent who presents himself as a victim and that the child is just telling the parent what he wants to hear.  The Judge may think the child is angry at the parent who initiated the divorce proceedings and is making a choice to punish a parent.  Many Judges believe allowing the child to decide unnecessarily places the child in the middle of the parents.  Each parent will naturally attempt to influence the child to “pick me.”  Consequently, Courts typically only allow the child to testify as to which parent should have primary custody when all other alternatives have been exhausted and only as a last resort.  While it may seem an easy solution to simply let the child decide, such solution many times only leads to more problems.  Courts generally do not favor such a solution.  Courts generally make a custody determination without testimony from the children and seek to do that which is in the best interests of the child