Can A Child Choose With Which Parent They Want To Live With In Pennsylvania?
A question that often comes up in a custody case is, at what age can a child decide with which parent they want to live?
As most family law attorneys will tell you, legally, the age when a child can decide which parent to live with is 18, when they are no longer a child and subject to a custody action. Until that time it is never up to a child. There is no magic age before they turn 18. A judge must take a child’s preference into account, along with that child’s age, maturity and other factors but it is always up to the judge. Simply put, in a custody action, a child has a voice but not a choice.
There are two kinds of custody in Pennsylvania: physical and legal. Physical custody is where the child will live, which parent will provide what kind of care for the child, and how much time each parent will spend with the child.
Legal custody, on the other hand, is a parent’s right to help make important decisions for the child about matters like the child’s medical treatments, education, culture, and religious upbringing.
Legal custody may be joint or sole. In most cases parents share legal custody of the children. If legal custody is joint then the parents must make important decisions together. If it is sole then one parent has the right to make the important decisions without input from the other parent.
Physical custody may be shared, where each parent has an equal amount of time with the child; primary and partial, where one parent has more time than the other; or sole, where one parent has no time with the child at all. In addition, a parent can also agree to or be awarded supervised visits, where an approved supervisor must be present for all visits.
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What Is The Law In Pennsylvania Regarding Child’s Parental Preference?
“The weight to be accorded a child’s preference varies with the age, maturity and intelligence of that child, together with the reasons given for the preference. Moreover, as children grow older, more weight must be given to the preference of the child.” Wheeler v. Mazur, 793 A.2d 929 (Pa. Super. 2002).
Most judges are more likely to consider a child’s choice if it’s based upon sound, mature reasons, versus a preference that seems to be based upon momentary whim or impulse.
Of course, much of the decision is still based on the parents. Courts will always look at things like their employment and living situations, geographic locations/ plans to relocate, or a history of substance abuse or violence. Pennsylvania’s family law is pretty similar to most other states in this regard.
So the short answer is, the older and more mature a child is, the more credence their opinion has in deciding custody, or who they will live with. But there is no set age where they are legally entitled to make a decision.
To make an initial custody determination, Pennsylvania judges have to consider an extensive list of factors that affect the child’s safety, which include:
- Which parent is more likely to encourage and allow the child to have frequent and ongoing contact with the other?
- Is there any present and/or past abuse committed by a parent or a member of the parent’s household?
- What are the duties performed by each parent on behalf of the child?
- What are the child’s need for stability and continuity in terms of education, family life, and community life?
- What is the availability of each parent’s extended family?
- Are there any sibling relationships?
- What is the child’s custodial preference, based on the child’s maturity and judgment?
- Has one parent has tried to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures were required?
- Which parent is more likely to provide a loving, stable, consistent, and nurturing relationship that meets the child’s emotional needs?
- Which parent is more likely to attend to the child’s daily physical, emotional, developmental, educational, and special needs?
- How close do the parents live to one another?
- What is each parent’s availability to provide care for the child or make appropriate child care arrangements?
- What is the level of conflict between the parents and their willingness and ability to cooperate with each other?
- Is there any history of drug or alcohol abuse in a parent’s household?
- What is the mental and physical condition of everyone involved?
Additionally, and contrary to common belief, there is no preference based on gender. Therefore there is no favoritism for mothers over fathers, or fathers over mothers.
When Can A Child’s Preference Influence A Judge’s Ruling?
There is no minimum age which prompts a Pennsylvania judge to say that a child’s wishes will or won’t be considered. Rather, PA custody law clearly specifies that a child’s custodial preference must be well-reasoned and based on maturity and judgment.
The court will try to determine a child’s wishes whenever it’s possible, but the child’s wishes do not control the outcome of the case. Depending on how rational they are presented, they can be a very important consideration that may tip the balance in one parent’s favor. For example, if both parents are equally suitable custodians, the child’s preference may be the determining factor as to whether sole, partial, or joint custody is granted.
Do Children Have To Testify About Their Custodial’s Preferences?
A judge may decide that a child is mature enough to express a reasonable custodial preference, and may allow them the opportunity to testify in court. The judge will speak to the child in a more informal physical location, like the judge’s chambers, so that the child won’t have to testify in open court.
When the judge speaks with the child, the parents’ attorneys will be present. They have the right to ask the child questions as well. A court reporter also must be present to transcribe the questions and answers and make an official record of the interview.
Not all children will be allowed (nor is it necessary) to testify in court. The judge will make every effort to accommodate the child and make him or her as comfortable as possible so they are able to clearly and correctly communicate their custodial preferences, which will then be taken into account when ruling on a final decision.
The bottom line is that determining the physical and legal custody of a child is subjective and varies from case to case. No Pennsylvania divorce lawyer can say for certain what the answer can be –because it depends upon a wide variety of factors that each play an important role.
How Colgan & Associates Can Help You With Child Custody
At Colgan & Associates, our team of caring and committed family lawyers are highly experienced with handling child custody cases for Pennsylvania families. If you have questions about any part of custody law or family mediation, please don’t hesitate to contact our office for a no-cost and no-obligation phone consultation. We would be happy to speak with you today! Call us at (717) 790-2048.