Can I get primary custody if my child wants to live with me?

Can I get primary custody if my child wants to live with me?

My child says he/she wants to live with me, will the Judge take that into consideration in determining which parent is awarded primary custody of our child? 

Attorneys are often asked at what age can the minor child make their own decision about which parent they want to live with, or at what age the minor child can decide whether or not they want to continue visitation with the non-custodial parent. 

The short and direct answer is, there is no definitive age at which a minor child may make that type of decision, and the minor child never gets to make the decision all on their own.  However, that does not mean that a child’s preference for where they live or how often they visit the non-custodial parent plays no part in decisions by the presiding judge. 

In Arkansas, courts must consider the best interest of the minor child when determining where the child will live, and how often (and when) the non-custodial parent may exercise visitation with their child.  Many factors are considered by the court to determine what is in the best interest of the child, including the preference of the child if the child is of a sufficient age and can show the required mental capacity to reason.  There is not specific age when a judge is required to listen to or defer to the child’s opinion, the judge will make those decisions on a case by case basis. This also applies to visitation with the non-custodial parent.  If your child is able to show the mental capacity to reason and articulate their valid preference, the Judge can take that into consideration when making child custody and visitation decisions. 

However, the Court is not bound by any desire of the child to live with one parent or the other.  Arkansas Courts do not have to follow the child’s preference on custody, even if he or she is mature enough to have a reasonable opinion.  Court must consider the child’s preference along with other factors relevant to custody.  If the Court decides the child’s preference is not in the child’s best interest, the Court will decide against the child’s preference. 

If the Court determines that the child is of sufficient age and can show the required mental capacity to reason, the Court may have the child testify to tell the judge their preference.  Alternatively, an attorney ad litem may be appointed to represent the child and report to the Court what the attorney ad litem believes is in the best interest of the child and the child’s preference.  The attorney ad litem represents the child and only the child, and can be used as an alternative to having the child testify in Court.  If a child is to testify about their preference, the judge will take precautions to make sure the child is not harassed when testifying, as stating a preference in custody matters in front of the parents can be a traumatic experience for children.  Alternatively, the judge may also interview the child outside of the courtroom in the judge’s chambers. 

In general, Courts will determine the primary custody arrangement whenever the parents are unable to come to an agreement themselves.  The Court considers all factors relevant to the well being of the child, including: 

  • The child’s best interest and welfare. 
  • Each parent’s willingness to encourage a relationship between the child and the other parent (and grandparents). 
  • The psychological relationship between the parents and the child. 
  • The need for stability and continuity in the child’s relationship between the parents and siblings. 
  • The past conduct of the parents toward the child. 
  • The reasonable preference of the child. 
  • Evidence of domestic violence toward the other parent, child, or other family member. 

If you need assistance in a child custody matter, give us a call.  We can help.