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Modification of Custody Based on Preference of Child

As a child grows older and begins making decisions affecting his or her own life, a child might decide that he or she wants to go live with the “other” parent. Whether the court approves the move depends on the age and maturity of the child, the reason, for the move, and the ability of the parent to care for the child.

Reasons for Change in Custody

In most situations, before a court will consider a modification of custody, the court must first consider whether there was a change of circumstances that affected the child. Once a change in circumstances has occurred, the court can consider the preference of the child as a factor in making a decision. The older and more mature the child, the more likely the court will comply with the child’s stated wishes, unless there are reasons why the change would not be in the child’s best interests. In some states, where a child is old enough, a change of circumstances is not necessary. In Georgia a child’s selection of the parent with whom he desires to live, where the child has reached 14 years of age, is controlling, absent a finding that such parent is unfit. Without a finding of unfitness, the child’s selection must be recognized and the court has no discretion to act otherwise. In Maryland, a child at least 16 years of age may go into a court and request a change of custody. The request by a child to change where the child lives is a sufficient change of circumstances to allow the court to consider the request.

Denying the Child’s Preference

There are some situations in which the court will deny the child’s request. Where there are several children, who seem to change their minds as to whether to relocate with mother into another state or remain with their father, a judge might talk to the children to see what each truly wants. If the parent the child chooses to live with has a history of violence or abuse, the court will not find the choice to be in the child’s best interest and will deny the request. Where the chosen parent is providing a place for the child to stay, but is not really there to supervise the child and tend to his or her needs, the court is unlikely to change custody. A child who is seeking to opt out of a difficult school program by moving in with a parent in a different school district may get a change of custody but not a change of school. A court will testimony from all of the parties and will exercise its discretion in deciding what is best for the child.

Reasons for Granting a Change

Where the court can perceive no adverse consequences to the child’s request to live with another parent or where there are positive reasons for the change, the court will award custody to the parent chosen by the child. If the other parent is in a better school district, if the child is constantly battling with the custodial parent, if the custodial parent is moving into a new community or state and away from the child’s other relatives, friends, and school, if the chosen parent can better accommodate the child’s needs, and these are the reasons given by the child for the change in custody, the court is likely to agree and grant the request.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.