Very often, clients ask us how old their child has to be before he or she can choose which parent they want to live with. The answer is not a simple one. In most cases, absent undue influence or improper involvement of a child in the matter (or worse yet, alienation), once a child is a teenager, their wishes, while not determinative, should at least be considered. Again, the age and weight given a teenagers wishes varies from judge to judge.
In fact, I tried a case a few years ago where it was undisputed that all of the children said that they wanted to spend more time with the father. However, it was also undisputed that the father repeatedly improperly involved the children in the matter, or worse, and this, it was also undisputed that additional time with the father was not in the children’s best interests. As a result, his request for more time was denied. About two years later, he tried to get more time again. The motion judge (now a second judge hearing this issue) denied it because the submissions confirmed that the father was still improperly involving the children. Two months later, with no new facts, and no evidence that more time was in the child’s best interests, a third judge let the 17 year old go live with the father because it was this judge’s belief that, unequivocally, a teenager can choose where they want to live.
This concept was recently discussed in the case of M.I. v. B.I., an unreported (non-precedential) Appellate Division decision released on January 23, 2013. In this post-judgment case, the Appellate Division repeated the concept that the law requires that a teenager’s (here a 15 year old) preference be considered absent evidence that the child was overly influenced by the parent with who she wanted to live.
The court noted that:
"The age of the child certainly affects the quantum of weight that his or her preference should be accorded[.]" Lavene v. Lavene, 148 N.J. Super. 267, 272 (App. Div.), certif. denied, 75 N.J. 28 (1977). However,
"[a] trial judge is not bound by a young child’s preference to live with one parent over the other." The judge is only required to give "due weight to the child’s preference;" the preference is a factor which the judge should consider along with all of the other relevant factors. Thus, stated preferences are not conclusive but must be considered in applications for modification. [Ali v. Ali, 279 N.J. Super. 154, 169 (Ch. Div. 1994) (quoting W.W. v. I.M., 231 N.J. Super. 495, 511 (App. Div. 1989)); see also Sheehan v. Sheehan, 51 N.J. Super. 276, 291 (App. Div.), certif. denied, 28 N.J. 147 (1958); Boerger v. Boerger, 26 N.J. Super. 90, 103 (Ch. Div. 1953)].
Courts should also evaluate the "’character, condition, habits and other surroundings’ of the parents in considering their fitness and the welfare of the children." Sheehan, supra, 51 N.J. Super. at 291 (quoting Clemens v. Clemens, 20 N.J. Super. 383, 392 (App. Div. 1952)).
Here, the judge recognized that Amy had her own views on the issue of her primary residence and that she very much wanted to live with her father. The views of Amy, then age fifteen, were entitled to significant, albeit not controlling, weight. Although the judge was rightly concerned that Amy was overly influenced by her father, he found no evidence that such was the case.
Here, the denial of a modification of custody was remanded for further consideration because the Appellate Division’s "… review of the record satisfies us that there was a prima facie case of changed circumstances, specifically the preferences of a "very sophisticated" fifteen-year-old girl who expressed a preference for living with one parent and concerns about the parenting style of her then parent of primary residence."
The take away here is that the child’s preference cannot be bought or influenced and if it is not, then the child’s preference, especially if they are mature and/or sophisticated and can articulate appropriate reasons, should at least open the door for further review of the issue.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or firstname.lastname@example.org.