By Jedidiah McKeehan
The quick answer is, never. As you might imagine, this question comes up a great deal. Someone is talking to me and they say, “well, when my kid turns 12, he gets to pick where he wants to live.” Unfortunately, I have to tell them, that they are incorrect.
At this point I launch into an explanation of the factors that the court uses to decide where a child will live. The first thing I tell them is, “look, I do not know any judge who is going to do what a 12 year old tells them to do.”
Then I explain to them that Tennessee Code Annotated section 36-6-106, lists the factors the court is to use in deciding child custody. There are fifteen factors. Only one of those fifteen factors involves a child’s preference. The specific factor involving a child’s preference states, “the reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children.”
What I then tell people is that I have had the experience of having clients tell me that their child will say they do not want to see one of their parents. The problem with that, is that the child actually has to testify in front of both of their parents and it is understandably uncomfortable for them to say they do not want to live with one of their parents in front of that parent. Typically, the child testifies that they like both parents.
Because of that, I usually recommend that people keep their kids from having to testify however, sometimes its unavoidable.
Further, I usually tell people that once kids reach 16 and have a driver’s license and a car, and most definitely when they reach 17, that most judges will let the children go wherever they please because they will do so anyway since they have their own vehicle. I recall doing one divorce case where a wayward 17 year old was already living with her boyfriend and both parents agreed to simply leave her completely off of their custody paperwork.
Some judges, however, will insist that children go where the court documents say they go until the day they turn 18.
To circle back to our original question, I cannot totally discount a child’s preference as to where they want to live as a factor in determining child custody, but it is not nearly the controlling factor that people think that it is.
Jedidiah McKeehan is an attorney practicing in Knox County and surrounding counties. He works in many areas, including divorce, custody, criminal, personal injury, and estate planning. Visit attorney-knoxville.com for more information about this legal issue and other legal issues.
