As a matrimonial lawyer, I often get the question "how old does a child have to be to decide who they get to live with?" There is a perception out there that there is a magic age where a child is empowered to decide which parent they get to live with. This simply is not the case.
Rather, a child’s preference is only one factor a court must consider when deciding custody. Why is the child’s preference not absolutely determinative? Because it is not always reliable and may not be in their best interests. Maybe the child is too young or too immature for their preference to be relied upon alone. Maybe one parent is improperly influencing or pressuring a child to express a preference that is not their true preference. Maybe the child feels bad for and/or feels the need to take care of the parent because of some physical or mental infirmity of the parent or a feeling that the parent is the victim of the other parent. Perhaps the child has been promised something by the other parent or is trying to play one parent against the other. Perhaps the child (maybe a teen) feels that the other parent will give them more freedom.
This issue becomes even more difficult after an initial custody determination is made or agreed to and then a child expresses a preference to live with the other parent. That was the issue in the unreported (non-precedential) decision in the case of Traynor n/k/a Dallara v. Traynor decided on March 29, 2011. In this case, the father appealed the denial of his motion to change the custody of his 11 year old daughter who allegedly decided that she wanted to live with him.