Parents often ask us “at what age can my child choose with whom they want to live?”. Children may express their preference to spend more time with one parent. Sometimes children ask the question because they are just sad when their time ends at one home, and sometimes, children have a well thought reason for asking to spend more time with one parent.
Of course, the most important issue to explore is what Michigan law states regarding a child’s right to choose where to live. It’s a widely held and incorrect belief that there exists a specific age at which a child holds sole decision-making power in custodial matters. In Michigan, the law holds that a child doesn’t have option to choose until they reach the age of 18. Nevertheless, the courts do consider the child’s reasonable preference if they are of an age where such an expression can be made. The question then arises: what constitutes a ‘reasonable preference,’ and when is a child considered ‘sufficient age’?
When parents initiate a divorce or child custody proceeding in Michigan, the jurisdiction falls to the Michigan court. This grants the judge the authority to issue orders pertaining to child custody, parenting time, and support.
In the process of determining child custody, the court examines twelve Best Interest Factors, as detailed in MCL 722.23. One of these factors pertains to the child’s reasonable preference, contingent on their ability to articulate it. In this blog, we’ll delve into this specific best interest factor, and consider when a child is of ‘sufficient age’.
To determine child custody, the court must review the testimony and evidence presented on all twelve best interest factors. The court does not have to give equal weight to each factor, and it is in the court’s discretion the amount of weight it gives to each factor.
Upon request by a by a parent, the court conducts a private interview with the child, free from the influence of either parent. This conversation is often recorded to maintain a record for potential appeals, though access to the recording isn’t extended to the parents. Consequently, the parents remain uninformed about the child’s discussion, his or her stated preference, and the judge’s findings on the matter.
Michigan statute dictates that the court will consider the child’s preference when the child is deemed to be of sufficient age to express preference. The law, however, refrains from specifying a particular age. Instead, the court takes into consideration the child’s chronological age, level of maturity, intellectual capacity, and ability to effectively communicate their reasonable preference. This invariably implies that the older the child, the greater the weight attributed to their stated preference.
During the court session, one of the parents escorts the child, allowing the judge to meet with them privately. This setting is designed to put the child at ease, enabling the judge to gauge their maturity and their capacity to articulate a well-considered opinion. It’s important to note that Michigan law restricts the judge from delving into other issues, and the judge is restricted to asking about the child’s preference.
When a child meets with the judge, one of the parents will bring the child to court and the judge will meet with the child in chambers with neither parent present. This setting is designed to put the child at ease, enabling the judge to gauge their maturity and their capacity to articulate a well-considered opinion.
In certain instances, the Friend of the Court or a designated child custody evaluator may assume the responsibility of interviewing the child. Typically, these are seasoned professionals, such as psychologists, attorneys, or social workers, who possess the expertise to assess the child’s maturity.
In practical terms, if a child expresses a desire to live with one parent due to discomfort in the custodial home or enticing promises made by the non-custodial parent, the court is likely to become aware of these motivations during both parents’ testimonies concerning the other best interest factors.
Even when a child voices a preference to move to the other parent’s residence, an evidentiary hearing is still required. Parents should be prepared to present testimony and evidence addressing all best interest factors.
If your child has communicated a reasonable preference to reside with either you or the other parent, it is advisable to consult our child custody attorneys promptly. This will afford you ample time to prepare for an upcoming evidentiary hearing. Feel free to contact us at 616-285-0808 to discuss your situation and schedule a no-obligation consultation.
