What is the Magic Age?

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Many people are involved in cases involving divorce and many involve children.  A question that is frequently asked is, “What is the magic age?”  What they actually want to know includes:  At what age can a child choose who he or she wants to live with?  At what age can a child choose not to see the other parent?  At what age does the child decide how often he or she will see the other parent?

The legal answer is simple: 18.  A child is considered an adult at 18, is no longer subject to the jurisdiction of the court, and therefore, they cannot be compelled to follow the court order. However, the practical answer is much more complex.

In a custody dispute, the court must determine, among other things, what is the “best interest” of the minor children.  Best interest is defined in a statute that says the court must consider 12 factors.  One of the 12 factors is “The preference of the child, if the child is old enough to express a preference.” Basically, the court will consider what the child has to say, but only as it relates to where they would like to live.  The Michigan Court of Appeals has decided that a child as young as four is old enough to express a preference.  However, like any other factor, the weight the court gives to that factor can vary.  A court is likely to give very little weight to the preference of young child.  A court may give more weight to the preference of an older child, but other factors may play a role, for example:  has one parent promised the child something if they come to live at their home or is the child being threatened by a parent and is afraid to state his or her actual preferences?

Importantly, the preference of the child is only ONE factor and generally not a deciding factor.  Just because the child wants to move with the other parent does not mean that the court can or must allow it.  The court is REQUIRED to look at all of the factors and consider the child’s preference as one of them.  A child does not get to choose with whom to reside at any age, in the eyes of the law.

That being said, finding and consulting/hiring an attorney who is familiar with the opinions of the court/Friend of the Court in your county is the best option.  In some counties, a child’s opinion is heavily valued once the child reaches a certain age.  In some counties, a court barely considers a child’s position, and many courts take a position in between.   Every case is unique and every court is different, and you should seek the advice of a professional who can advise you as to your specific case.