There’s a common myth that kids can simply pick which parent they want to live with after a divorce. The reality is that it’s up to the parents, if they can agree, or the judge if they can’t. Until a child is 18, they don’t get to choose. If kids were in charge of the decision, you can imagine what their reasons would be. A 6-year-old would choose the parent with the most lenient video game rules, and a 15-year-old would choose the parent who doesn’t enforce curfews.
While it’s not entirely up to the kids, they do get to have their opinions. And depending on their age, the judge might let them express these opinions. There’s no set age, but if the judge believes they are mature enough to weigh in, he or she is allowed to take their wishes into consideration. It’s not the main factor, but rather one of the many factors, that goes into a final custody decision.
If the parents can’t agree, the judge’s main consideration will be the best interests of the child. It’s a somewhat subjective test, but it’s the law. The judge can take many factors into account in making his or her decision, including the wishes of the mother and father, the child’s relationship with each parent and any siblings, the child’s current community – school, home, support system, etc., as well as the child’s safety (any history of abuse will be an important factor), to name a few.
If you want to change a custody arrangement later on, you’ll have to go back to court and ask for what’s called a modification. In general, you have to wait two years from the custody decision to ask for modification in a contested case. It’s a tough road and modification is usually only allowed where there had been a substantial change in circumstances that directly affects the child or the current custodian has been shown to be unfit to retain custody. If both parents agree to a modification, however, they may be able to ask the judge sooner for a change in custody.
The key to getting a good outcome in any custody case is having an experienced custody attorney. It’s not just about the laws on the books, but about knowing the judge and how he or she generally rules on a particular issue. It’s about knowing the other attorneys and having a good reputation in the local legal community. It’s risky to handle a contested custody case on your own, especially if the other parent has an attorney fighting for their interests. Generally speaking, courts favor the current custody arrangement and are hesitant to keep making changes, so if you make a mistake you can’t just turn around and try again.