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Florida Best Interests Factors: Can a Child Choose Which Parent to Live With?

Florida makes time-sharing (custody) determinations based on twenty “best interests of the child” factors. These include “the reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.” How heavily does this factor weigh in the determination of time-sharing? How old does a child have to be for a court to consider their preference? Can a child choose which parent to live with in a Florida divorce?

These are questions that provoke a great deal of anxiety in our divorcing clients, and understandably so. Most parents don’t want their children inserted into the middle of a divorce and to be placed in the position of choosing between their parents. Most parents also recognize that children often want what’s easiest or most fun, and not always what is best for them. Parents may be concerned that children will choose the parent who lets them stay up late, watch TV, and eat junk food rather than the one who makes them do their homework, clean their room, and get a flu shot.

HOW FLORIDA COURTS TAKE A CHILD’S PREFERENCE INTO ACCOUNT

The good news is, Florida courts also believe that children should not be forced to take sides in a divorce. In fact, courts generally believe that children should be insulated as much as possible from the adult business of divorce.

Parents who are worried that their child will be called to testify at a divorce trial regarding their preferred parent can put their minds at ease. It is exceptionally rare for a court to take testimony from a child, particularly a young one. When a child’s input is given to the court, it is generally done through a guardian ad litem (GAL). A GAL is a person appointed by the court to be the voice of a child’s interests in a court proceeding. The GAL may spend time with the child and others in the child’s life to get a sense of the child’s needs and concerns, and will then prepare a report for the court.

How old does a child have to be before a court will take their preferences about where to live into account? It does vary; some thirteen year olds are more mature than some sixteen year olds, for instance. As a general rule, a child may be of “sufficient intelligence, understanding, and experience to express a preference” when they are fifteen or older. The preference might be expressed, as mentioned above, through a GAL. If the child sees a psychologist or counselor, that person might also submit a report to the court indicating the child’s preference about where to live.

While a child’s wishes are certainly relevant, as a practical matter, it is very uncommon for a child to have the opportunity to express those wishes to a judge, even privately in the judge’s chambers. It is still more rare for a child to have to testify in open court, in front of both parents. Doing so puts a great deal of stress on both parents and children, and there are other, less traumatizing ways for courts to discern the best interests of a child.

HOW THIS “BEST INTERESTS” FACTOR AFFECTS YOU AS A PARENT

The bottom line is that you shouldn’t lose sleep over which parent your child prefers to live with. There are parents who try, during a divorce, to be the “fun” or “favorite” parent. Most do this not to gain an advantage in a custody hearing, but more because they want to keep a strong relationship with their child as everything else is changing. Whatever the reason, this behavior often does more harm than good. During a divorce, children don’t need their parents to be their buddies; they need them to be parents, to provide security and stability.

Remember that there are twenty “best interests” factors in Florida law, and courts try to take a broad look at how they interact. Judges don’t have a checklist, and they don’t mark off which parent “won” which factor. Continue to care for your child and meet their needs as you have always done; being reliable and putting the child’s needs first will serve both of you better than obsessing over your child’s preferences. If you have questions about this, or any of the Florida best interests factors, please contact Florida family lawyer Antonio Jimenez to schedule a consultation.

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