Filed under Divorce and family law.
One of the questions I am frequently asked is at what age is a child able to determine with which parent he or she wishes to live. Of course, that question is generally asked by the noncustodial parent in a situation where they are seeking to become the custodian. The answer is that there is no such magical age.
When parents are divorcing, either they will agree upon a parenting plan or the court will establish one. One component of the parenting plan is a residential schedule, which defines where the child or children will live and at what times. In determining the residential schedule, one of the factors the court is required to consider, although not the most important, is the wishes of the child if the child is sufficiently mature to express a reasoned and independent preference for a specific residential schedule (RCW 26.09.187). There is no specific age that is written into the statute, and as a practical matter, the courts rarely give much weight to this particular factor unless it dealing with a child of 16 or 17 years of age.
Once the parenting plan is established, although it is modifiable as a matter of law, there are significant procedural roadblocks and substantive obstacles to modification (see RCW 26.09.260). There are specific statutory grounds or reasons which must be satisfied before the action will be allowed to continue, much less before modification will be granted. Contrary to the original establishment of the residential schedule of the parenting plan, none of those grounds involve consideration of the wishes of the child. In fact, it is generally thought by the legislature and the courts that the mere existence of the parenting plan modification action is detrimental to the child or children, so to consider their wishes is effectively to involve the child even further in the litigation and to force them to take sides between the parents, an inherently harmful result. For that reason, the statute regarding modification does not contain any magical age at which a child can determine which parent will be their custodian, nor does it even contemplate the court taking the wishes of the child in that regard into consideration.
For more information about parenting plan modification actions, please feel free to call the office and request a consultation.