What Age Can a Child Decide Custody?

Written by r. lynne
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What Age Can a Child Decide Custody?
Young children often have no say in custody battles. (child image by Tadija Savic from Fotolia.com)

Questions of child custody arise when parents end a marriage. The court decides which parent receives primary custody. The child may have a role in the decision-making process.

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Legal Incompetents

Many states consider a child's right to choose which parent to live with when the child reaches the age of 12 or 13. The laws vary from state to state. Technically, the child has no legal right to choose. By definition, minors are legal incompetents and cannot make legally binding decisions.

Affidavit of Preference

Some states allow a child to sign an affidavit of preference, which specifies a custodial parent. This may play a part in the judge's decision. The older the child, the more the child's preferences tend to influence the judge. In most cases, the circumstances will matter more than the child's age.


A judge takes several factors into consideration when a child prefers one custodial parent over another. These include why the child wants to change residences, the level of stability and reliability of the parent the child wants to live with, the level of the child's social maturity and emotional and intellectual development, parental support of the child's decision, whether the move will serve the child's best interests and whether the child can clearly articulate why one parent is preferred over the other. If the child appears uncertain, confused or insincere, the judge may disregard the child's wishes.

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