My son wants to live with me. Should his wishes be honored and/or considered by the judge?
As you can see from our example statute above, the preference of the child(ren) is listed first among the factors to be considered. This does not, however, mean that it is the most important factor but, rather, is the "first among equals."
If a child is old enough, mature enough, and intelligent enough to make a decision rationally on this issue, and can communicate his or her decision and wishes effectively, the judge will listen closely to what the child has to say. The child should also have a convincing reason to substantiate his or her decision. In most states, children over the age of fourteen are considered to be mature enough to be heard, and the judge will take their wishes into account more than he or she would if the wishes of a child of, say, seven years of age.
Here we experience a return, somewhat, of the "tender years" doctrine, in that children under the age of seven are generally not considered to be wise or sophisticated enough to make such a decision. In addition, they may be too easily influenced by the wishes of one parent or another. Children over the age of seven but younger than fourteen will generally be heard by the court, and the judge will make the decision on a "case by case" basis; that is, the judge will not make a blanket rule to accept the wishes of all children but will decide on each child, given all the factors and evidence presented in the case regarding the age, maturity, and intelligence of the child.
Certain judges require a child to testify in court as to his or her wishes, while other judges will interview the child privately, in chambers or elsewhere.
Be aware that having a child express a preference, especially a strong preference, may affect the parent-child relationship of the parent who is not chosen. Children may not want to express a desire since it forces them to choose "who is the better or favorite parent."