Study: 1 in 4 states don’t require judge to consider child’s custody preference

Custody Preference Considered

Many separating parents mistakenly think their child can choose whom to live with.

In reality, Georgia is the only U.S. state that lets a child choose who takes physical custody of them. Even then, the child must be 14 or older, and their choice must be approved by a judge.

Thirteen states don’t require a judge to consider a child’s preference at all when making custody decisions. The others (plus Washington, D.C.) do when the child is mature enough to have a reasonable opinion.

These findings come from an analysis of current state laws by Custody X Change, which offers parents a web app for managing custody via parenting plans, calendars, expense tracking and more. (See the full state-by-state data.)

“If you go to court over custody, you need to understand your state’s approach to many topics, including a child’s right to share their opinion,” said Ben Coltrin, Custody X Change co-founder and president. “There’s debate over what’s more important: letting a child have a say or shielding them from parental disputes. How your state and judge view the issue will affect your case.”

It’s important to note that most custody decisions are made by parents in settlement agreements; these parents can consider their child’s opinion however they want. When parents can’t reach agreement, then a judge decides what custody arrangement would serve the child’s best interests.

Once the court issues a custody order, the child must comply. This means your son or daughter cannot refuse to see a parent who has been awarded custody or visitation time.

Custody Preference AgeHow old must a child be to weigh in?

All states allow judges to consider the preference of a child in a custody case, as long as the child is sufficiently mature. And, as we saw above, a large portion of states require judges to take a mature child’s opinion into account.

So when is a child mature? Most states don’t set a specific age, instead letting judges decide case by case.

When laws do cite an age, 14 is most common. Three states (California, New Mexico and West Virginia) presume that children 14 and older are sufficiently mature, while two (Indiana and Utah) give extra weight to the opinions of kids in this range.

Another four states (Mississippi, Oklahoma, Tennessee and Texas) presume children 12 and up are mature enough to form a preference worth examining.

Georgia law sets the youngest age guideline. It says children 11 and up can share their thoughts with the court. (And, remember, Georgia kids at least 14 years old can choose which parent to live with, although a judge can override the choice if necessary.)

All these states give judges leeway to hear from younger children who seem particularly mature.

Overall, the older a child is, the more impact their wishes have on their custody case.

If your child is at least 14, a judge in any state is likely to hear what they have to say. On the other hand, a child in the single digits probably won’t get to weigh in. Children between these two groups fall in a gray area, and whether they can provide input depends on their state, judge and maturity level.

More information:

Editors: Both maps are available for download at the link above. Please credit Custody X Change.

About Custody X Change: This powerful tool helps divorced, separated or single parents create professional-quality parenting plans and track their custody schedules. Since 2005, we have helped tens of thousands of parents worldwide ensure the best possible future for their children.

More child custody research: Our 2019 study that found child support amounts vary dramatically by state. In 2018, we produced a ranking of states by how much parenting time they give fathers.