We regularly get asked at what age can a child decide which parent she or he will live with. I was asked this again just the other day. Frequently, the person asking is under the impression that a child can make their own decision after they turn 12; I am not sure where this persistent rumor comes from but it may have something to do with parents thinking custody in the event of their death.
While I cannot speak to the laws of other states, under Washington State law, an unemancipated person under the age of 18 does not have the ability to make their own residential decisions. The parents (and sometimes the court) are the ones who are empowered to make those and most other decisions for the child. Once a person turns 18, they are an adult and can make their own decisions.
Basically, it comes down to the idea that we don’t let children make decisions for their parents, we allow parents to make decisions for their children.
This does not mean, however, that the child may not have a voice. Under Washington State law, when making residential decisions the court may consider “the wishes of a child who is sufficiently mature to express reasoned and independent preferences”. In other words, it is not about age, it is about maturity. The wishes of a 17 year old child who wants to live with a particular parent because that parent will buy them a car shouldn’t carry much weight, but the wishes of an 11 year old who believes one parent provides a more stable environment could carry a good deal of weight.
Most often the information about the wishes of a child will come in through the report of a Guardian Ad Litem or Parenting Evaluator appointed by the court. Although it is permitted, generally the courts do not interview a child directly.
As a general rule, the child will never be specifically asked to state a preference. The courts frown on putting the child in a position where they have to takes sides in their parents’ dispute, i.e. to choose which parent has their loyalty. A properly done interview will simply give the child space to express their own feelings or preferences if they want to do that. Some children feel very strongly that they want to be left out of any decision making (they don’t want to be disloyal to either parent), while other children feel very strongly that no decision should be made without consulting them and may be very vocal about their preferences.