Q: My wife and I divorced several years ago and my son will be 14 in June. He wants to live with me and does not have a good relationship with the man my ex-wife married. I have had to speak to this fellow about how he better not put his hands on my son. This is not a good situation. When will my child be old enough to decide where he wants to live?
A: It is widely believed that there is a certain age at which a child can decide with which parent they want to live.
There is no such age.
The court system does not allow, wisely, children to make that decision. The courts believe that children would be lobbied and catered to and bribed and pressured if at a certain age they could simply choose for themselves which parent was going to raise them.
The law in Alabama is that the wishes of a child are a factor to be considered but are not binding on the court.
It simply isn’t fair to ask a child to decide between two parents who both love the child. It isn’t fair to place the burden of making that choice on a child. Obviously, if a child is mature and can explain to the court a good reason for living with one parent rather than the other, then the court will listen and give weight to the child’s wishes in proportion to the child’s maturity and reasons for asking the court to rule in a particular way.
A child who wants to live with a parent who is going to allow more freedom is probably not going to be listened to by the court. An athletic child whose parent is moving out of the district in a way that would prevent that child from continuing in a particular sport with a particular team would certainly be listened to carefully by the judge.
Both parties would have to consent before the child could speak with the judge privately and either party could make the child state his wishes in open court if they chose to do so.
I think that as a practical matter that when teenagers begin to drive and act with some level of maturity, these decisions sort themselves out. As I point out from time to time, remember that agreements to modify child support based on new and different living arrangements will not be honored by the court. The party responsible for paying child support will almost certainly still be responsible for that support even if the child moves in with that parent without an agreement filed with the court and approved by the judge.
Buckle up and drive safely.
McCutcheon & Hamner, P.C.
2210 Helton Drive
Florence, Alabama 35630