Clients often ask me how old a child needs to be before he/she can decide where they want to live?  My answer is uniformly 18.  At 18, a person is in their majority, and custody provisions no longer apply.  At 18 a person can vote, join the military, or marry.  However, unless your child does join the military or marries, you’re responsible to support her until she is 21.

Do children have a say between 0-18?  The answer is a qualified “yes”.  In a custody dispute, a court will assign an attorney for the child.  It is that attorney’s job to represent the wishes of the child.  In certain circumstances, the attorney can substitute the attorney’s judgment for that of the child’s.  Absent those circumstances, it is the attorney’s job to advocate the wishes of the child.

How much the court considers the wishes of the child is very different case by case.  Courts will look at various factors including the age of the child, his level of maturity, and the reasoning.  For example, if a 12-year-old says, “I want to live with Mom because she lets me miss school and doesn’t make me do my homework”, that will not necessarily get the child a pass on playing hooky.

Once a child is a later teen, many Judges will shrug and ask, “what can I do?”  if the child prefers to live primarily with one parent versus the other, taking into account their reasons.  Judges are always concerned that an older child will “walk with his feet” and simply go to the parent the child wants to spend more time with.

Does bribery help?  The answer is “sometimes yes” although I try to discourage parents from using same.  Certainly, if your goal is to raise a healthy, well-rounded person, then teaching her manipulation tactics which may be short sighted and not productive in the long run is probably not a good idea.  How many parents actually listen to me I guess is a different question.  While alienating a child from one parent may get you your final goal of more custodial time, it may be a shallow victory as the child has now successfully learned how to play both parents against each other, and to use the system to her benefit.

I also counsel parents that none of us has a guarantee of being around to see our children grow up.  Especially in this pandemic laden world, we should all be acutely aware of our mortality.  If you spend your life teaching junior to hate Dad, and you get hit by a bus and now he needs to live with Dad fulltime, what is their relationship like and what values and coping skills have you taught the child?

I found a recent case that is great for advocates of children, but I question the long term ramifications of this decision.  In VL v. DL (NYLJ 6-23-21) the parents had joint physical custody of two teenage children.  The 13 and 17 year old’s made it clear that they wished to spend more time with their father than their mother, based upon his increased availability due to not working very long hours (which it sounds as if this was his prior pattern), his new spouse having a close bond with the children, and:

the children have adapted to and appreciate what their father is able to provide, including a large home, pool, and resources for vacations.

As my grandmother used to say, any fool can get used to a good thing, including a teenager!  The Judge modified custody from 50/50 to a 1/3 – 2/3.  Does need Disney Dadding work? I guess so.


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