Minor children generally do not have a choice of which parent they want to live with, unless they are older. The age a minor child is allowed to have input into which custodial parent she wants to live with differs from court to court because the sitting judge has discretion in allowing the minor children to have input.
Types of Custody and Minor Child Rights
Three types of custody can be awarded during a divorce or a custody battle: rotating, primary and secondary, and sole custody.
For rotating custody, the child does not have to choose between parents, as she spends a set amount of time with one parent, then the same quantity of time with the other parent. The parents usually live near each other, and must also usually live in the same school district in order for a court to order rotating custody.
For primary and secondary custody, one parent has primary residential custody where the child lives with that parent for up to half of the year. The secondary residential parent has "reasonable" visitation. Visitation may consist of every other weekend, one four- to five-hour visit during the week or an overnight during the week and rotating holidays. In this scenario, the Court may ask the child for input regarding his living arrangements.
For sole custody, one parent has sole custody and the other does not have visitation rights. The minor child has no rights to choose a parent in this situation. The Court will not order sole custody unless one of the parents is unfit. A parent may be deemed unfit if she is serving a long jail sentence, if she has a severe problem with alcohol or drugs or if she has severe psychological issues.
When a Court May Ask For Input
A court may ask a minor child which parent he wants to live with if there is a particularly nasty custody battle between the parents. Some courts will ask a child as young as 13 years of age, but generally wait until the minor child is at least 15 years of age.
If both parents request that the court take testimony from a minor child about where he wants to live, the court may hear testimony from a child that is younger than 15 years of age.
How a Court Gets the Child's Input
Often, the Court will not require a minor child to testify in open court. The sitting judge will request a meeting "in camera" with the minor child. This means that the sitting judge will ask to meet with the minor child in his chambers. The meeting usually occurs with no attorneys present.
Because family law judges know that one parent or the other may try to persuade a minor child to go with her, the judge will ask the minor child various questions regarding her feelings for both parents. The judge will also ask the child which parent she wants to live with, and why that child chose that parent.
If the Court refuses to speak to the minor children or the minor children refuse to speak to the sitting judge, the Court may appoint a guardian ad litem. The minor children have the right to a guardian ad litem. This person is usually an attorney appointed by the Court to represent the minor children in a custody battle. The guardian ad litem speaks for the minor children in open court.
The Court tries, in the best interests of the minor children, to keep them out of the courtroom. A child choosing one parent over the other often causes hard feelings between the child and the parent who is not chosen. Furthermore, a court or the sitting judge cannot give rights to a minor child. Rights of minors are limited, as minor children cannot make a rational decision in a stressful situation because of their mental age. A person is not considered to be adult until he reaches 18 years of age.