Can Your Child Choose Which Parent to Live With in Pennsylvania?
It’s no cliché: divorce is hardest on the children. Parents can set the terms of when they divorce and how they divorce, but children have no choice except to follow the custody decisions and living decisions which their parents or the family courts make for them. Most children have difficulty adjusting to the fact that their parents will no longer live together, even when the parents do everything they can to keep their children away from the conflict.
A parenting plan is an agreement or order that sets forth which parents have legal custody and physical custody of the children, as well as the visitation terms. A Pennsylvania parenting plan states where the child will live each day of the year, when the child can spend time with the other parent, and how the child can communicate with both parents.
Younger children have no direct say in the custody decision. While parents are required to base their parenting plans on the best interests of the children, the children cannot ask the family judge to hear their point of view, nor will the judge ask young children their preference. Family judges prefer that children remain in the same marital home as before the divorce. Family judges also try to have children stay in the same school so their education and social contacts remain uninterrupted.
In Pennsylvania, older children have the right to voice their opinion about any parenting plan. There are legal reasons and practical reasons why family judges and parents should consider the opinions of older children. Pennsylvania’s custody laws require that parents and families consider 16 factors when making custody decisions and crafting parent plans. While some states set a specific age limit, such as 12 or 14, Pennsylvania’s requirement is more general. One of the 16 factors states:
“The well-reasoned preference of the child, based on the child's maturity and judgment.”
In theory, this factor could apply to a child of any age; in practice, most judges will not listen to a child’s concerns until he/she is a teenager or nearly a teenager.
Another practical factor is that it is more difficult to make older children comply with a parenting plan. Older children generally are more focused on their education, extra-school activities, and friends. Telling a 16-year-old child when they must stay with and talk to their co-parent is likely to be met with more resistance and anxiety than when a parent tells a 6-year-old it’s daddy’s or mommy’s weekend or night to care for him or her.
There are also many practical considerations judges review when seeking an older child’s opinion:
- The judge will try to assess whether the opinion is the child’s actual opinion, or if the child is being pressured by one of the parents.
- There is no golden rule: sometimes, a 12-year old child can state strong reasons for preferring one parent, whereas a 15-year old may simply be upset because his/her mom won’t let him get a driver’s permit.
- Pennsylvania family law judges normally do not ask the child to express an opinion in court. Stating a choice in open court in front of both parents and others can be intimidating, traumatic, and incredibly upsetting for a child. Children usually speak with the judge in the judge’s chambers. The child may also be asked to speak with a child psychologist who is trained in speaking with children. In some cases, a child may need to have a guardian ad litem appointed to represent his/her interests.
- The child’s parents may be allowed to be in the judge’s chambers with the child; however, the parents normally are not in the room.
Divorce Magazine surveyed a number of Michigan judges to obtain their input about talking with older children about parenting plans. These were some of the Q and As:
- What’s the youngest age that you’ll consider speaking with a child?
Most judges said five or six. One judge said that the child must understand the difference between telling the truth and lying.
- Is anyone else present when you talk to the child?
Most of the judges said yes. One said the interview is video recorded, but another judge said normally not. The people present included a court report, a staff member, a guardian ad litem, or a family counselor.
- What specific questions do you normally ask?
Here the responses varied. The judges ask ice-breaker questions; questions to assess the child’s home, school, and family; and questions to elicit basic information. One judge asks if the child knows why he/she is here. Examples included:
- “Can you accept what I decide?”
- “Tell me the good things about each parent, whether there is anything they want to tell me, and whether there is anything I can help them with?”
- “What do you think I need to know to make a good decision?”
- “What do they do at each parent’s home? Who do they go to with their problems and successes? Who picks them up from school when they are sick?”
- “Who wakes you in the morning and prepares your meals? Who helps you with your homework? What chores do you have?”
- “Who else is living with your parents? How well do you get along with those people?”
- Do you ever ask a child to state his or her preference? Most judges said they do, but in a more gentle or indirect way such as:
- “If you could live anywhere you want, or have any schedule with your parents, what would it be?”
- One judge said, yes but added, “Sometimes… they don’t want to be responsible for the decision. I let them know I’m helping mom and dad decide how much time at each home.”
- At what age does the child’s preference influence you?
Some judges said 10 or older. Others said 12 or older. One said 15 - 16. The judges emphasized that “maturity” is a big factor. The judges added that it matters more when the child can give “solid reasons for their preference.”
The judges also added that it’s not hard to tell when a child is being coached by a parent. The judges said that they interview a child alone – not with their siblings. Most children don’t want to choose: they just want their parents to stop fighting.
In most divorces and separations, the parents do reach an agreement as to the parenting plans, often with the help of their Harrisburg family lawyers. Our experienced custody lawyers also understand how judges decide custody disputes and when judges will listen to your child’s preference.