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This concept was recently discussed in the case of M.I. v. B.I., an unreported (non-precedential) Appellate Division decision released on January 23, 2013.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.