December 30, 2022
When divorcing parents cannot agree on sharing responsibility for the children, they often seek guidance from a child custody lawyer. One of the most frequently asked questions of divorce attorneys in Florida is whether the children can select which parent they wish to primarily reside with.
When custody is contentious, the divorce lawyers for each party may attempt to mediate; if unsuccessful, both parties will have a custody trial, in which the court determines the parenting plan based on the child’s best interests.
A family law judge will determine the allotment of parenting time, physical custody, and responsibility of each parent. Many courts favor giving both parents legal custody over the minor children so that each has an equal say in the child’s upbringing.
However, in cases where parents don’t agree, the custodial parent has the final say on decisions affecting the child.
Florida Laws Regarding the Best Interests of the Child
The child’s best interests and preferences may not always align, especially if one parent is the fun parent who isn’t an active disciplinarian or spends more money on the child.
Family law judges consider many factors about each parent when making their decision, such as:
- Their willingness to foster a relationship between the child and the other parent
- Their ability to meet each child’s physical and emotional needs
- The physical and mental health of the parent
- The moral fitness of the parent
- The ability of the parent to provide a consistent routine for the child
- Evidence of any domestic violence
- Their ability to provide a safe and stable environment for the child
- The developmental age of the child and their abilities and needs
The judge will also consider the geographic viability of the child living with a particular parent. This includes evaluating the impact of that location on the child’s school and community relationships.
Additionally, Florida judges can consider any other relevant factor your child custody attorney uses to strengthen your case.
Furthermore, unlike some states, Florida requires a judge to evaluate the moral fitness of each parent in a custody case, such as whether a parent has substance abuse problems, engages in illegal behavior, or has frequent casual relationships with many partners.
Any extramarital relationships may also be considered if this behavior has a negative effect on the child.
The Child’s Opinion in a Florida Custody Arrangement
The child’s overall maturity, not necessarily their biological age, affects their ability to choose which parent they wish to live with. There is no established age for Florida family law courts to consider the child’s preference.
Instead, your child custody lawyer will present an argument of whether the child is:
- Intelligent enough to make the decision
- Understands the decision they are making and what it will mean
- Has enough experience and relationship with each parent to make a thoughtful decision
The age that a child may decide which parent to live with depends on the child; with multiple children, each child may be at a different developmental level, which can complicate the case. If this is your situation, consulting with an experienced child custody attorney can help you navigate this complicated process.
While the child’s opinion may be considered when the judge creates a custody order, it is one of many factors and not the only determinant in the case. Judges must consider whether a child is making a meaningful decision or is “acting out” against a parent that may have more stringent rules, for example.
Or, perhaps one parent may be exercising undue influence on the child; judges are also sensitive to that possibility. Your divorce lawyer can advise you on how to behave in contentious custody battles.
The Judgment of Florida Family Courts
For cases with multiple children, the judge often makes an individual decision for each child.
For example, a child may be too young to separate from their mother if they are being breastfed. Or perhaps one child may be too young to have the capacity to decide to live with one parent, while their older siblings may be mature enough to understand what their decision means.
Sometimes, one child may prefer one parent, while a brother or sister may prefer the other parent. If the needs of each child are met in this arrangement, a judge may allow the children to have a different primary custodial parent.
Does Florida Require Children to Testify in a Custody Case?
Neither parent nor their respective divorce lawyers can force a child to testify in family court as a witness in a custody case.
Although their opinion may be part of the proceedings, judges often ask the child questions in chambers rather than in open court, protecting them from involvement in family law litigation. In these situations, a court reporter is present to record the testimony and preserve the court proceedings’ integrity.
In an emergency, however, or if the child’s testimony is necessary to the case, the child may testify in open court.
Judges can have the child interviewed by a licensed mental health professional specializing in child psychology or may retain assistance from another similar expert. Alternatively, perhaps your child custody lawyer may want to have an evaluation of the child to determine their developmental ability to decide which parent to live with.
Minor children may also be represented by an attorney ad litem an appointed legal representative of the child who will speak on the child’s behalf in court. This lawyer must act solely in the best interests of the child and is independent of the divorce attorneys for the parents.
Do You Need Legal Representation in a Child Custody Case?
Consulting with an experienced family law attorney can help parents seeking custodial arrangements learn more about Florida laws regarding a child’s choice, as well as the considerations involved for the child’s best interests.
If you are divorcing and the custody of your children is a consideration, contact a lawyer for the legal representation you need to advocate for your interests and those of your children.