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Can Children Choose Who to Live with in Florida Custody Cases?

Board Certified Boca Raton Child Custody Lawyer

Filing for a divorce is a tough decision to make. However, when your divorce involves minor children, you will need to make many other important decisions regarding timesharing and custody.

But many divorced and separated parents in Florida wonder, “Can children choose who to live with in a custody case?” and “How old does a child have to be to express a preference?

Will a Judge Consider a Child’s Preference to Live with One Particular Parent?

Under Florida’s family law, a child’s expressed a preference to live with a particular parent can be considered by the judge. However, the child’s desire to live with one parent over the other will be taken into account by the judge only when specific criteria are met.

In other words, the judge is unlikely to award sole parental responsibility to the chosen parent based solely on the child’s preference to live with one particular parent alone. The Florida Statutes Section 61.13 states that both parents sharing parental responsibilities is presumed to be in the best interest of the child. A child must have “frequent and continuing contact with both parents,” according to the statute.

How Old a Child Needs to Be to Choose to Live with One Parent?

Unlike many other states, Florida law does not provide a particular age of children when they can speak up for themselves in court and choose who to live with. Instead, a judge must evaluate the child’s overall maturity and intelligence when deciding whether to consider their expressed desire to live with a particular parent after divorce.

Whether or not a child’s preference matters depends on whether the child:

  • Is intelligent enough to make decisions of this nature;
  • Has the emotional capacity to decide who to live with;
  • Understands the consequences of choosing one parent over the other in a custody case;
  • Has enough experience with each parent;

Although a Florida court may consider a child’s expressed desire to live with one parent, it won’t award custody based solely on the child’s opinion. The statute mentioned above lists 20 factors that are considered by a judge before issuing a custody order. “The reasonable preference of the child” to live with one parent is one of the 20 factors listed in the statute.

What to Do if Your Child Expressed Desire to Live with You or the Other Parent?

When determining whether a child is making an intelligent decision when choosing to live with one particular parent, the judge will also determine whether undue influence or pressure was involved in the child’s expressed desire. A parent cannot influence a child’s decision or put pressure on them, as doing so would not be in the best interest of the child.

Also, parents and attorneys are not allowed to force children to testify as witnesses and express their opinion in court in Florida. Children can only testify in court when their testimony is an emergency or is absolutely necessary. A child’s testimony out of court and their expressed desire to live with one parent may still be considered by the judge after appointing a licensed expert to interview the child.

If your child expressed a desire to with you or the other parent, you might wonder what to do next. It is advised to speak with an experienced child custody lawyer in Boca Raton to discuss your particular situation. Contact our Boca Raton child custody attorney Tina L. Lewert of Lewert Law, LLC, to explore your options. Call at (561) 544-6861 to receive a free consultation.