Home > divorce, divorce modification, family law general, paternity/child custody > The “My kid can pick which parent he lives with at ____ age” Myth

The “My kid can pick which parent he lives with at ____ age” Myth

There is a pervasive myth that percolates through Divorce Land.  It’s this:  “My kids can pick which parent they live with during our divorce/child custody action, because they are ____ (fill in the blank) age.”  This is a Happy Myth, perpetuated by well-meaning folk who (possibly) have the best interests of the kids in question at heart.  Unfortunately (for some), this IS a Myth.  Meaning, it’s not exactly true, though possibly based in some part in reality.

In Utah, how it works is this:  There is NOT an age at which a child can “choose,” on their own, barring other input, which parent they live with.  The statute controlling this in Utah is found at U.C.A. § 30-3-10(1)(e).

This is NOT going to happen in your case.

It says, “The court may inquire of the children and take into consideration the children’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the children’s custody or parent-time otherwise.” (emphasis added)  Reading the rest of the statute, custody determinations are made on factors that detail best interest of the child(ren).

This particular statute continues to say “The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.”

So what gives?  Why can’t the kids choose which parent they want to live with?  Don’t the courts think that the kids know what’s best for them?

“Dad is great. . .Gives us the chocolate cake. . .!” Probably not the best way to determine child custody.

In a word, No.  Kids do not always know what’s going to be the best thing for them, and quite commonly make choices that are NOT in their best interests.  It has to do with brain development.  A kid’s frontal lobe, the portion of the brain responsible for making good choices, is not fully developed until he or she is roughly 26 years old.  While no one’s going to be trying to control an 18+ year old person, those under 18 need some looking after, given their lessor ability to make good choices (and sometimes propensity to make dumb choices).  The average 14 year old boy, for example, will likely choose to go with the parent who has fewer rules, allows for the eating of more junk food, or provides the most privileges, whether any of this is actually good for his personal development or not.  Same goes for girls.

There is also good public policy behind the statute.  A child who feels that they are in control of where they live may react in a couple of different unhealthy ways:  Either they will feel that they have all the power, and the court will do whatever they say, or they may feel horribly guilty about “hurting the feelings” of one of the parents if the child fails to choose that parent.  If the court DOESN’T listen to them, they could feel  powerless.  If the court DOES side with them, they may become far too full of their own power in relation to the custody arrangement.

Kids are also pretty good at “working” their parents.  Divorces are highly emotional matters, and if the child had the choice, on his own, of which parent to live with, there is a real possibility that he could play the parents against each other.

“This is just a down payment, Son. There’ll be twice this when you pick me.” Umm, No.

Kid:  “Dad says if I live with him, he’ll buy me a car.”  Mom:  “Oh yeah?  Well if you live with me, I’ll get you a newer car.”  Dad:  “Really?  Well if you live with me, I’ll buy you a truck.”  Mom:  “I’ll spring for a 2009 (whatever the kid is lusting after).”  Dad:  “I’ll get you a current model jacked up pickup with extended cab and super-stereo system.  And I’ll throw in a prepaid gas card and insurance.” Kid:  “Sold, to Dad with the 2011 Truck and gas benefit.”  Not really the best way to determine which parent is going to ensure the child’s emotional and physical well-being is taken care of. [Note: This example is, sadly, based in reality.  I attended a Family Law seminar early in my career where one of the speakers, a judge, said that this little scenario had actually happened in a case he presided over.]

As with all things involving custody of kids, it’s really not about the parents.  Hopefully parents can be the grown ups, and seriously consider what’s going to be best for their children, and not what’s best for themselves.  And in a perfect world, that’s exactly how it would be.  Too bad we don’t live in a perfect world. . .


**I updated this blog for the first time on 4/9/13:  Utah legislation had changed the age when the court will take the child’s opinion into account in custody determinations from 16 to 14.  In my opinion, this is a “not that it matters” situation…I had a judge tell me in a divorce/custody modification case in the summer of 2012 that he “wasn’t going to let 16 yr olds drive a custody determination.”  So much for that…**

  1. creig
    February 15, 2013 at 12:33 pm

    that is not how children think at all… i am a 15 year old young man. and i do not think that any of that accurate. my situation is this my mother kicked my dad OUT OF his own house that he pays for by a protection order… SHE LIED on that order. IT was later falseified. SHe is should be in jail for iieing for that. You are not suppose to do that for a divorce. This article is for like children that are 10 years and younger.. i Do not think that if my mom has more candy i want to live with her or my dad will get me a car i will live with him… Thats not how kids will think.. As a kid (me) i personally believe that i understand what will be the best for me… For example i have seen so much bad things that my mother has done.. such as when i was 11 years old she let me use her phone for something. and i went through her messages and found out that her and this one guy were sexting…. so i ask her about it and she lies… and that is when the lieing has started. and after that She kicked my dad out of the house.. And i have been wanting to live with him for 4 years now. when i was 13 years old i saw on my moms phone a guys penis. on that phone and as a 13 year old kid that is not healthy for me to see… Now i get to see my dad once every other weekend and 1 day for four hours.. that is only a total of 47 hours a month of seeing my dad. Thats it. so You are TELLING ME THAT I DONT KNOW WHATS BEST FOR ME???? that is just sad and very hurtful comment if you see my point and understand about this


  2. February 15, 2013 at 1:15 pm

    As a general rule (and I AM speaking generally here), most kids don’t know what’s best for them… Case in point: I worked in the legal services clinic when I was in law school, and they had a case at that time where the clinic was representing a 16 year old as a guardian ad litem (attorney for a kid). That kid felt it was in his best interest to live in a single-wide trailer with a bunch of other kids, have lots of sex, and smoke as much weed as he possibly could.

    This is not to say that YOU are like that, Creig…But that’s how the legislature thinks of it. There is currently legislation being proposed that would drop the age where the kid’s opinion matters from 16 yrs to 14. I’ve gotta say, though, from my personal experience, it may not make any difference at all anyway. The court is not listening to the kids in divorce cases unless there have been allegations of neglect and abuse and there is an attorney appointed for the kids (which happens very rarely in divorces, especially these days.) Further, I had a judge tell me that my 16 yr old sons opinions didn’t matter at all to him, because he “wasn’t going to let a 16 yr old drive a custody determination.”

    I’m not trying to be insulting to you–there are a LOT of very mature teenagers out there, who are not in the best place in terms of which parent they live with. But realistically, you can only expect so much from family court. The court does not care. They want to shuffle divorces/custody issues out as fast as possible. It’s sad, but that’s reality. I do try and help people have realistic expectations. One is less likely to be disappointed if one doesn’t expect too much.


  3. Mr. Mom
    February 18, 2014 at 2:44 pm

    If you treat a young adult like a child, they will act like a child. Have you not seen the amazing things 14-year-olds are capable of – inventions, olympic medals etc? You view is rather skewed & simplified and you make a lot of false assumptions. You show three pictures of a father trying to bribe a child. I personally feel that a smart, understanding 14-year-old is perfectly capable of determining which parent they should live with. Their opinion should be heavily weighted in making this decision as well as the schooling options and parent backgrounds for the student. While some people use their kids as pawns, not all parents do and to assume so makes me question your role in family law.


    • February 18, 2014 at 3:04 pm

      I make no such assumptions regarding parents; I note only that the courts commonly do. I sat in court, in my own case, and listened to the judge tell me that he was not going to allow my 16 year old twin sons, both very bright, responsible, intelligent kids, to have any say at all whatsoever in determining where they lived. The court wouldn’t even allow me the chance to have a custody evaluator make the determination after speaking with my kids. I was simply shut down.

      Don’t think that the information/opinions that I provide in this blog post have anything to do with How Things Should Be. I tell you, from my personal and professional experience, simply How They Are. Depending on your judge, your kids, no matter how old they are, may have no say at all.


  4. Josh Terry
    November 11, 2014 at 7:03 pm

    I find it funny that all of your scenarios are anti father pro mother. This detracts from your credibility in this field. I am a loving father that continually gets taken advantage of my the mother and her controlling husband. You may be right that children should not be involved in the “best interests” conversation, personally I don’t believe that for a second, but writing an unbiased article will be much more convincing.


    • November 12, 2014 at 2:21 pm

      I’m sorry if you found the article biased. If you would read through some of the my other blog articles, you will find that I am NOT inherently “pro mother;” in fact, I’ve represented fathers in a number of cases. The purpose of the article was not to state what my opinion is on the subject; rather it is to educate parents as to the general stance of the court. I DO believe that kids should be involved in the “best interest” conversation. I tried to get my own 16 year old sons involved in this 2 years ago in my own divorce modification case. Unfortunately for my children, the court refused to entertain any such arguments or suggestions. The court actually refused to address best interests in my case. So I know where you’re coming from in terms of feeling like that’s not the way to do it. For your information, I used the “Dad is Great! Gives us Chocolate Cake” reference to Bill Cosby’s comedy routine, that many people are familiar with, not because I think that’s always the way it is, or SHOULD be, but rather to lighten up what I feel is a very bitter and twisted part of the law. If the article offends, I apologize. Utah’s treatment of child custody offends me, too.


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