When Can Kids Really Choose Which Parent to Live With? Judge’s Decision Explained!

Separation proceedings, especially those that occur in court, are inherently complex. Whether married or not, a couple undergoing an official separation must navigate numerous steps and make decisions that could lead to disputes. The complexity increases when children are involved. If parents cannot agree on a course of action, the family court judge will make the final decision. But does the child’s voice matter in this scenario? Will a child’s preference to live with one parent over the other be considered? Does their opinion carry weight? We asked these questions to Nolwenn Leroux, a Paris-based attorney specializing in family law.

Firstly, it’s important to understand that “it is a child’s right to be heard in any proceedings that involve them”, though it is not mandatory. It is up to the child to request to speak to the judge. Attorney Leroux points out that “there is a misconception that the judge will ask the child which parent they want to live with, as it would place them in a loyalty conflict”. Indeed, this would be like asking the child to choose their favorite parent, something the justice system avoids doing. Instead, a judge who has heard conflicting accounts from the parents might want to “get a sense” from the child: “What the judge really wants to know is how the child feels about living with each parent and what they might prefer for their arrangements, but they won’t ask direct questions.” The attorney notes that a child does indeed have the right to express their preference, under certain conditions, primarily their age.

A judge will start to seriously consider a child’s input once they deem the child “capable of discernment”. The law does not specify an exact age, leaving it to the discretion of the judges. “It’s generally considered to start around the ages of 7 or 8”, adds Nolwenn Leroux. However, the older the child, the more weight their words carry with the judge. A teenager “who understands the situation” and can justify their preference to live with a particular parent with solid reasons, such as the need for stability or proximity to their school or extracurricular activities, will more likely sway the judge.

“I recall a case where a young child said: ‘I want to stay with dad because it’s fun, I can watch TV and eat chips.’ Obviously, that’s not what matters. In such cases, the judge will take the child’s words with more caution than those of a teen who provides genuine reasons and can articulate them clearly”, shares the attorney. Leroux also reminds us that during these hearings, the family court judge pays close attention to whether the child has been influenced by their parents.

“You can immediately tell when a child has been pressured to say things they don’t believe because one of the parents wants to secure custody and has coached them on what to say to the judge. This is also why there are attorneys appointed by the state for children: they meet with them alone and ensure their words haven’t been manipulated by adult influence”, explains Ms. Leroux. Ultimately, a child’s preference to live with one parent over the other is considered by the judge, who must balance it against the child’s age and other discernible factors.