Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)

At What Age Can Children Decide With Whom To Live?

A reader, the divorced mother of two children, ages 12 and 14, wrote asking at what age the children can decide with whom they want to live. According to her email, she and the father have joint legal and physical custody with the kids living most weeknights with her, and every other weekend and one weeknight with dad.


The short answer is that absent proof of abuse by the father or other compelling reason, neither child has reached the age where their living preferences alone are likely to sway a judge, should this issue ever be argued in court. And, this is a case that I wouldn’t want try without first exploring other possible remedies.


This mom should be careful not to overreact to what could be a temporary period of animosity between the kids and dad. As she will soon learn, her children have reached the age where expressions of disaffection for one parent or both are likely to occur regularly as the teenagers try to assert their independence. Mom’s turn to be shunned may be just a few emerging hormones away. As they advance farther into their teens, children increasingly resist a set schedule with their parents, as “de facto” custody shifts from the parents to their teenagers’ friends.


If it’s clear that their objection to living with their father isn’t a passing phase, or based on some temporary disharmony, mom should talk to each child privately about their reasons. This should allow any allegations of improper behavior on dad’s part to surface, but if they do not, dad should be quickly brought into the discussion. The goal is to develop approaches for meeting the children’s concerns, such as easier access to/for their friends when at dad’s place, while making sure that both parents continue to be actively involved with raising them.


For teenagers 15 and above, I have found that setting flexible visitation schedules, where the dates and times are those mutually agreed upon between parent and child, are readily accepted by the kids and takes the pressure off everybody. However, the parent whose home is not the child’s “primary bed” should recognize that setting up visits and sleepovers with that parent will not be their teenager’s highest priority.


If all can agree on a revised schedule, they should have an attorney commit it to writing in the form of a court order and submit it to the family court for its approval. This approach will be far less costly, in both family wear and tear as well as financially, then seeking resolution through litigation.


If, despite their best efforts, this family cannot arrive at a mutually acceptable solution, mom needs to keep the following in mind: She should never refuse to make the kids available to dad on the dates and times specified in the parenting plan, even if the kids refuse to go. Withholding the kids could lead to felony charges for failing to comply with the court-ordered schedule. Instead, she should advise dad of the situation and invite him to pick the kids up. If they still refuse to go, and she fears that she may later held to be at fault, she should call the police to the scene. They can document that mom made the kids available.


If visits with dad regularly become this difficult, with no prospect for a negotiated compromise, then it may be time to consider outside intervention, but still not necessarily a trial. However, that’s a whole other story, next week’s in fact, when we will discuss how professional mediation can help resolve this type of problem in way far less destructive to family ties than a trial.