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Can my child decide which parent gets custody?

There are misconceptions on how much influence a child has when it comes to determining custody. Many parents believe that if their child wants to stay with them, they will receive custody.

While children are allowed to communicate their opinions on the divorce, that is not the only element weighed in custody disputes. Family court judges consider a variety of factors when deciding on a custody arrangement.

Children's preferences

Children are not allowed to decide who receives custody of them, but judges are required to hear the children regarding their preferences. This applies to children age 12 and older, although the opinions of those who are at least 14 are taken more seriously.

Besides age, a judge will also consider maturity. An articulate six-year-old who can explain their preferences for one parent can share that with the judge. Alternatively, a 13-year-old who does not have the same grasp of reality may not have their opinion considered.

If it is apparent that a child is bribed to testify a certain way, that preference carries less weight. Wanting to live with a parent because they were promised gifts does not carry the same significance as fears of abuse if a child lives with a particular parent.

Children do not testify in open court but privately in the judge's chambers. Testimony may be recorded by a court reporter and the parents' attorneys may be present. Parents are not allowed in the judge's chambers during these statements.

How custody is determined in Tennessee

Children's preferences may come into consideration but judges primarily weigh custody interests on the best interests of the child, including physical and emotional well-being. The ability of a parent to provide support and affection is also considered along with a child's home, school, and community records. Criminal charges and abuse allegations are also evaluated.

Many of these conclusions are summarized in a guardian ad litem report. The guardian ad litem is an individual appointed early in the case to represent that best interests of the child.

When custody is in dispute, this individual will investigate to determine the parents' relationships with the children. This may include interviews with teachers and medical providers as well as observing each parent as they interact with the child.

It is also important to note that children are not required to testify about preferences. Many children do not have a preference or would prefer to avoid hurting a parent's feelings. Also, if there is lingering trauma about the divorce or past abuse, the child may be incapable of communicating preferences. It is best not to pressure them if that is the case.

In the end, while your child's preferences are certainly important, they are not the deciding factor in your custody hearing. In fact, they may not be a factor at all. As their parent, you should focus instead on what arrangement is best for your child in the years to come.

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