Can my Child Choose Which Parent to Live With?

In divorce or child custody cases, often a judge must decide which parent shall have custody of minor children. I often have clients assert that since their child is a certain age, he or she can chose where to live. There seems to be a widely held belief in some specific age at which the child gets to make the choice regardless of what the judge thinks.

This is simply not true. There is no particular age when a child’s desire is honored as the deciding factor in determining which parent shall have custody.

When making child custody decisions, Kentucky law states that the judge must do what is in the best interest of the child. There are various factors the judge will consider in making this determination. The opinion of the child is one of the factors. But it is one of many, not the only one.

This does not mean a child’s opinion never carries any weight, as there are cases in which a child’s testimony is a very important factor. Generally, the older and more mature a child is, the greater the importance of his or her testimony. For example, a judge will likely take the opinion of a 16 year more seriously than the opinion of an 8 year old.

Even if the judge does listen to the child’s testimony, the child’s reasoning will be scrutinized. In fact, the best interest of a child could very well be the opposite of what the child desires. For instance, living with Dad because he “lets me play video games and doesn’t make me do homework like Mom does” will probably not sway the judge toward the father as the child intended.

In conclusion, the opinion of the child is one of many factors a judge must consider when making a child custody determination. Generally, the testimony of the child carries more weight if the child is older and mature. There is not a certain age at which the child gets to decide regardless of what the judge thinks. How much weight to give a child’s testimony is determined by the judge on a case by case basis.

Divorce and child custody cases are difficult. If you find yourself facing either situation you should contact an attorney.




Dustin joined the SBW&P team in 2010, coming to us from one of the oldest firms in Cincinnati. He earned his undergraduate degree from Bellarmine University, summa cum laude, and his law degree from the Salmon P. Chase College of Law at Northern Kentucky University, where he graduated cum laude. Dustin’s law practice includes personal injury law, medical malpractice law, business law including corporations, LLCs and business planning, real estate law, probate law, estate planning, employment law, and family law.