My child is 13, can she choose which parent to live with in a divorce?
When parties are divorcing, oftentimes the most important issue to be decided is the custodial arrangement for the children of the parties. Sometimes a client wants to know if the wishes of the child will be considered or if the child can speak to someone and have their wishes considered.
Tennessee Code Annotated section 36-6-106 (13) provides as follows:
“(13) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children”.
Section 13 is only one of 15 factors that the Court must consider in determining what parenting plan is in the best interest of the child. If the child is 12 or over, then his or her preference may be considered, however, it is not determinative. It is one of the many factors that the Court must consider, including but not limited to, the child’s relationship with each party and siblings, each party’s work schedule, which parent has performed the primary caretaking during the marriage, the needs of the child and fitness of each party to parent. The Court will also look at the maturity of the child and ascertain if the child’s basis for choosing one parent over the other is for valid reasons.
If a client would like the child’s preferences to be considered, the child may be permitted to speak with a judge in chambers, possible with only the attorneys and judge present if both parties agree. Typically, the child does not testify in open court. Another method is to have the Court appoint a Guardian Ad Litem who meets with child and makes a report to the Court that may include the preferences of the child.
The answer to the question, “Can my 13 year old choose which parent to live with in a divorce?” is it that the child’s preference is not determinative but only one factor and the Court only considers the preference when deciding what living arrangement is in the best interest of the child.
If you’re looking for a family law attorney, call (865) 685-4780 to schedule a case assessment with Melanie Hogg or another Held Law Firm attorney.
