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At what age does a child of a divorced couple in FL get to decide with which parent he may live?

When I meet new people, I always hear, “Can I ask you a quick question? Not for advice, just wondered about something I’ve always heard.” Invariably, my new friend will tell me some bizarre legal myth they’ve picked up from the street or from family members who are sure that because their, “friend’s, cousin’s, brother’s, parents got divorced and the judge awarded…” I’m always amazed at the misinformation floating around. First, unless the person relaying “the law” is a lawyer or a judge, they’re probably wrong (also Google search results are sometimes wrong because the law evolves and websites aren’t always updated), and second, no two cases are identical, so you can’t rely on the outcome of one case to determine the outcome in any other case. One slight variation in the facts can change everything.

In light of these experiences, I’ve decided to offer Legal Mystery Monday. Each Monday, I’ll pose a new legal mystery on my law firm Face Book page, allowing readers to comment, and then the answer will be revealed each Tuesday. Who knows? Maybe I’ll occasionally throw in a prize!

Our first Legal Mystery Monday is possibly the most common question I’m asked: in a Florida divorce, at what age can a child decide which parent he or she wants to live with? Seriously, almost every time I meet someone, this is THE question. In the Legal Mystery Monday post, I offered a variety of possible answers: 12, 16, 10 or 8. Unanimously, those who commented agreed that a child in Florida can decide which parent they want to live with when they reach twelve years old. And that is unanimously incorrect.

The answer: none of the above. It was a trick question! “Oh that sneaky lawyer,” you’re saying. Hate me later, but learn something now. In Florida, there is no set age at which a child gets to decide with which parent he or she wants to live. Some other states have a set age, often twelve or thirteen, but Florida does not. In Florida, the bottom line for child placement and time-sharing between the parents comes down to the best interest and welfare of the child. Many factors are considered, and not one of those factors alone controls the outcome. Judges have broad discretion in applying the factors. It is true that a child’s preference may be considered, but in practice, most judges won’t even allow a child’s testimony if there are other means of eliciting the same information from documents or an adult’s testimony. When a child’s preference is presented to the court, the weight of that factor usually increases as the child ages, an application of the law consistent with the reading of the statute noted below.

Personally, I think Florida’s approach is sound public policy. Consider for example, a sixteen year old with profound disabilities and the mental capacity of a six-year-old, is it in anyone’s best interest for that child to have the final say simply because they meet the strict definition of an age in the statute? This would be an unusual scenario, but we could speculate on thousands of examples to show that it would be very bad public policy to set a particular age as the controlling factor in child custody matters.

In the statute, a few things stand out. First the language “shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child…INCLUDING BUT NOT LIMITED TO…” Thus, the list of factors must be considered by the court, but these are not the only issues a court may consider. And subsection (t) is a very broad “catch-all” provision that allows a judge to consider pretty much any other issue not listed in the statute. The answer to our Legal Mystery Monday is found at subsection (i), “The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.”  Thus, there is no set age in Florida at which the child gets to decide with which parent he or she wants to live.

The factors considered by the court are:

Florida Statutes 61.13 (3):

Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to:

(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.
(n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
(r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.

And this is yet another example of why hiring a lawyer to help with your family law case is so important. The forms do not provide you with the law or an analysis of the law and how it may be applied to your case. I can’t help but wonder how many people walk into family court alone, thinking it’s in the bag because little Johnny is twelve and says he wants to live with Dad, only to find out that consideration of all the factors weighs in favor of Mom.

Don’t go it alone. Call me so I can help you through it.

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