Can A Child Choose Which Parent They Want To Live With In Pennsylvania?

child decision child custody cases

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 is 18. At this age 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 the final decision is always up to the judge. Simply put, in a custody action, a child has a voice but not a choice.

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. They will consider geographic locations and plans to relocate. History of substance abuse or violence are critical factors as well. 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.

Custody Types in Pennsylvania

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. He or she doesn’t need to consider the 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. In this case an approved supervisor must be present for all visits.

If you’re looking for compassionate and experienced child custody lawyers in PA, we can help.

What Determines A Judge’s Decision in Child Custody Cases?

To make an initial custody determination, Pennsylvania judges have to consider an extensive list of child custody 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 each parent performs on behalf of the child?
  • What are the child’s need for stability and continuity in terms of education, family life, and community life?
  • Are there any sibling relationships?
  • What is the availability of each parent’s extended family?
  • 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. However, 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.

At What Age Can a Child Refuse Visitation in PA?

Family law in Pennsylvania considers a child under 18 an unemancipated individual. Thus under PA child visitation laws the frequency, schedule and place of visitation is controlled by the court in the custody order along other details on parenting exchanges.

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.

  1. janice adams says:

    My granddaughter tells her mom and I she does want to live with her Dad and stepmother . Because they don't let her a child she is 9. they make her do things that grownups should do not a child.She loves her mom and tells us all the time she wants to with her mom only.

  2. Annalise Bish says:

    I'm 14 and I REALLY want to live with my mom not my dad. I feel like I am in a tiny invisible box when i am with my dad. That is the opposite with im with my mom. I'm scared of my dad. Because he has hit me in the past. He is better now but I still dont wanna live with him.

  3. Shawne Jumper says:

    We have notarized POA for our 14 year old grandson to reside with us until he graduates or turns 18. He was placed with us for emergency reasons by Children and Youth whom requested we draft the POA and get it signed by his mother so we would be able to act as attorney in fact on his behalf. He has expressed a desire to both Children and Youth and us that he does not wish to live with his mother at all. He wants to stay with us. His mother is very difficult. If she wants him to move home, does he have to or will the POA uphold?

  4. Paul Anavitate says:

    I'm tired of what my daughters mother is doing. She not letting me see my daughter I pay child support for 12 years .Her mother is putting things in her head. My daughter is terrified of her mother . She recently had 2 more kids with 2 other guys and now wants me to pay more support & child care when I'm available & so is my mother. This matter was already taken to court 10 years ago. Now she is up to her games again. I have 2 other young children one 11 & the other is 9 with my wife of 12 years married. My daughter runs ,hides & cries when it's time for her to go home . But I have not seen my daughter in 3 months because of her mother's games…please don't know what to do anymore…please help.

  5. Margaret Albright says:

    My son age 10 wants to live with me because he's mistreated in his present home. What can i do? He's very fearful of his Dad due to being abused in my opinion..

  6. Kathy says:

    Grandchildren rights when both parents don't want them. But want just one and or none of the children.How do the grandparents get the rights?.Also if the child is suicidal,and has been sent to the Crisis center,And mom removes the child ,just one from safety home,should she be able to.

  7. Todd Heller jr says:

    I have a 9 year old that lives with his mom and her boyfriend he comes to me every weekend tells me that he don't wanna be there that the boyfriend is mean to him his mom and the boyfriend call him fat he scared of them he wants to come live with me I have his older sister living with me his other sister moved out his brother who is 12 moved in with his best friend and his mom cause of the mom and her boyfriend the 13 year old wants to live with me also what can I do I have 50/50 right now they come to me smelling like weed all the time please help I want my kids in a safe environment

  8. Emma says:

    I have a mom who thinks I am mentally ill and she's crazy I don't want to live with her. I am 13 and the court is going to make me live with her partially but she is going to send me to therapy and I really don't like her or my step-dad this court is unfair to for e me to partially live with them just because my mother wants me with her for her selfish needs when I was over there she didn't care at all about me and was very mad that my dad was getting copied money which they gave to her but still she is greedy selfish a liar and unfit to be a parent and so is her husband who's 25. I shouldn't have to live with them just because she is lying to the court about my dad.

  9. Keilen says:

    My girls are wanting to change their custody agreement so they are at my house full time and just visit dad's house. Currently it is 50/50. The basis for the request is their father's attitude. And what they report as a stressful living environment. They are 10 and 16. I also have an 8-year-old daughter who really hasn't said much about her preferences. They have begged me for the last year to get the custody changed. Their father has a it's my way or the highway type personality and feels that everybody needs to do things his way or be punished. For instance he still takes away my 16-year-old's phone at supper because she won't eat meat….. She has never eaten meat. I assume that this would be a situation to get a guardian ad litem as it will be about what the children want?

  10. Paula I DeCarlo says:

    If a 15 year old is training in a professional career path, one parent isn’t paying and the other is paying for HighSchool , Pre Professional training; why can’t a straight (A)academic teenager, on a path to attain a professional career tell the “absent” parent that they do not want to be in there presence due to issues caused in the teenagers career. Like a parent hitting on an underage student kinda thing. Which is extremely wrong and totally almost destroyed the teen – due to the career path.

  11. Anonymous says:

    If a 15 year old can be charged as an adult , why can’t a 15yr old make a decision for their career path – and custody if one parent is consistently causes issues with the training , pulling the teenager out of important “mandatory “ production rehearsals, the parent is out of control attending “phish concerts “ in their 40’s- and refusing to pay for any extracurricular activities!
    I will do what I can to make sure another teenager isn’t forced out of their pre professional training career because “an attorney “ feels 18 is correct ; no matter if you just destroyed a child’s future career path.

  12. Dawn Kitai says:

    Thank you for talking about how it works in Pennsylvania in regard to who a child wants to live with. My husband and I are getting divorced this year and we have a daughter. First I will find an excellent child custody attorney for this.

  13. Mary Dobson says:

    I'm a grandparent seeking custody of my grandchild, I need to know what is needed for this

Comments are closed.