When Can A Child Express A Preference For Custody?

father and kids

When a Florida divorce involves minor children, one of the biggest decisions that the parents must make is that of custody. Typically, the court encourages the parents to come to an agreement that works best for them, but if the parents cannot agree on a custody arrangement the court will step in and make the decision for them. In some cases, the court may rely on the expressed preference of the child when it comes to determining custody. If you would like to learn more about whether your child’s preference can be used in your custody case, call or contact the Law Offices of David L. Hirschberg in Boca Raton today to schedule an evaluation of your case.

***Florida has done away with the term “custody” in favor of other terms, such as parenting plan.  However, for ease of reference and purposes of this blog, the term custody is being used.

When Does the Court Consider the Child’s Preference?

Unlike some states where the law gives a specific minimum age that the court can consider the child’s preference in a custody matter, Florida law does not have a particular age where the child’s expression of preference is given more weight. The judge in the case must make a discretionary determination based on a three-prong test:

  • Is the child intelligent enough to make a choice for custody
  • Whether the child understands the decision they are making
  • Whether the child has enough experience with each parent to make a meaningful choice

Because of this, children as young as adolescents may be able to articulate a preference in their custody case, while other children that are older may not have their opinion considered by the court.

It is also important to note that a child’s preference in their custody case is not the only factor considered, nor does a child’s preference serve as a super-factor. The judge must weigh it with a number of other considerations when determining what custody arrangement is in the child’s best interest.

How Can the Child Give Their Preference?

There are many ways that a child can express their preference for custody to the court. A child cannot be compelled to testify in open court, but some choose to do so if the situation is an emergency or absolutely necessary in the case. A judge may also take the child back into their chambers to have a private conversation about their custody preference or discuss their preference with a guardian ad litem who then discloses the custody preference to the court. A judge can also order that the child talk to a psychologist or counselor about their opinions on their custody case, and the professional can share the decision with the court. 

Let Us Help You Today

Determining child custody is often one of the most emotional and stressful decisions in any Florida divorce, but your child may be able to have a say in the matter if the parents cannot come to an agreement. To learn more about whether your child will be able to express their preference to the court in your custody hearing, contact the Boca Raton parenting plan & timesharing attorneys at the Law Offices of David L. Hirschberg today.



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