Can Children Express Preference in Florida Custody Proceedings?

Learn how a child's preference impacts custody decisions in Florida.

When a custody dispute involves very young children, either the parents or a court will decide where they live. As children get older, however, they may prefer to live with one parent or the other. Many states require courts to consider a child’s preference when determining parenting time arrangements.

This article will explain how a child’s preference may impact custody decisions in Florida. If you have additional questions about the effect of a child’s custodial preference after reading this article, you should consult a local family law attorney.

Overview of Custody Decisions in Florida

When separating parents can’t agree how to split parenting responsibilities and visitation time, the judge make the decision for them. After hearing evidence from both parents, the court will develop a parenting plan, including a time-sharing schedule, based on what is in the child’s best interest. The judge will consider a number of factors when making this custody decision, including the following:

  • each parent’s willingness to honor the time-sharing schedule, encourage a good relationship between the child and other parent, and be flexible with scheduling
  • each parent’s willingness to keep the other parent informed of the child’s issues and activities
  • each parent’s willingness to consider the child’s needs over the parent’s desires
  • the anticipated division of parental responsibilities in the future
  • the length of time the child has lived in his or her current residence
  • each parent’s mental and physical health
  • the location of each parent’s residence compared to the child’s school and other activities
  • the parents’ moral fitness
  • the child’s home, school, and community history
  • each parent’s knowledge of, and involvement in, the child’s education, medical care, activities, and favorite things
  • each parent’s ability to provide a consistent routine for the child, including meals, homework and bedtime
  • any evidence of violence, abuse, drug use, or neglect in either parent’s household
  • any evidence of lying about the other parent’s violence, abuse or neglect
  • the parenting tasks each parent normally performs
  • each parent’s ability to meet the child’s developmental needs
  • the child’s preference, if the court believes the child has the intelligence, understanding and experience to have a meaningful opinion, and
  • any other factor that may be relevant to the court’s parenting plan.

To read more information about custody decisions in Florida, see Child Custody in Florida: The Best Interests of the Child.

When Will the Court Consider a Child’s Preference?

Unlike other states, in Florida, there is no particular age when courts must consider a child’s preference regarding which parent should have custody. Instead, the judge has the discretion to decide whether the child is intelligent enough to make a choice, whether the child understands the decision he or she is making, and whether the child has enough experience with each parent so that the decision is meaningful.

While Florida law doesn’t state an exact age when a child’s preference must be considered, in one case, the judge stated that a 10-year old is normally too young to make an intelligent decision. But, in another case, the court took into account the preference of an 11-year old that the judge found to be very intelligent and articulate.

Even though a judge may consider a child’s stated preference, the court doesn’t have to base a custody decision solely on the child’s opinion; the judge simply needs to consider it along with all the other factors that are relevant to custody.

The court also must determine whether the child is making an intelligent decision or if the child is just rebelling against the current custodial parent. The judge will also investigate whether a parent is unfairly influencing the child to express an opinion; Florida judges are sensitive to whether a parent is coaching a child to choose him or her over the other.

The judge will make an independent decision for each child. For example, a judge can’t assign custody of a child too young to have an intelligent opinion to the father simply because the older siblings want to live with their father. One Florida case involved a son and a daughter, where the son preferred living with his father, and evidence showed that the mother ignored the son’s activities and often left him alone during the week. Still, the court couldn't transfer the daughter’s custody to the father when the daughter and mother had a close relationship, and the girl preferred living with her mother.

In some instances, the court may award custody to someone other than the child’s biological parent. For example, in one case, the judge awarded custody of a 13 year-old to his stepmother, who had raised the child from infancy, while the father was abusive, often intoxicated, and blamed the boy for his biological mother’s death.

Do Children Have to Testify About Their Custodial Preferences in Court?

In Florida, neither the parents nor their attorneys can force a child to testify as a witness in court. Courts are careful to protect minor children from getting involved in family law litigation. The court will only allow a child to testify if his or her testimony is absolutely necessary, or if it is an emergency.

In non-emergency cases, Florida courts have a couple different options to obtain a child’s custodial preference. First, the court can appoint a licensed mental health professional or another expert to interview the child, and that professional or expert can later testify to the court about the child’s desires. Sometimes the child may also speak with a guardian ad litem (a person the court appoints to represent the best interests of a child), who can also testify in court. Alternatively, the judge may speak directly with a child in his or her chambers, outside the presence of the parents. When this is done, a court reporter must be present to record the child’s statements, otherwise, the judge can’t base his or her custody decision on the child’s testimony.

If you have additional questions about children’s custodial preferences in custody proceedings, contact a Florida family law attorney for help.

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