How old before child can choose what parent to live with
What Age Can a Child in Texas Decide Which Parent to Live With?
Factors the Court Will Consider When Determining a Child’s Residence
In the state of Texas, a child’s decision cannot be the sole factor in determining which parent the child lives with. When the child reaches the age of 12, upon motion, the court can consider the child’s wishes when it comes to who they will live with. Primarily, the court uses the following factors to make a child custody decision:
- The age of the children
- Each parent’s wishes
- The history of each parent’s relationship with the children
- Each parent’s ability to communicate with the other parent on child-related issues
- The nature of the parent’s relationship with each other at the time of the hearing
- The nature of the relationship between the children and both parents
- Whether each parent is mentally and physically fit to care for children
- The mental and physical health of the children
- The willingness of each parent to facilitate the children’s relationship with the other parent
- Which parent has been providing the majority of physical care for the children before the divorce or separation
- Each parent’s participation in child-related activities, like medical appointments, sports, and educational activities
- Each parent’s ability to provide a stable, loving environment for the children
- The distance between the parent’s homes
- Each parent’s work schedule in regard to the amount of time the parent can spend with the children
- The living accommodations at each parent’s home and whether one parent resides in the home where the child was raised
- Whether the parents can provide for the children’s physical needs, emotional wellness, and medical care
- The extent that the children would need to adjust their lives at home, at school, and in the community
- The wishes of the children if they are above the age of 12
- Any existing evidence that one of the parents has committed domestic violence, abuse, or neglect
- Substance abuse, criminal activity, or mental health concerns surrounding either parent
What Is the Difference Between Child Residency and Custody?
There are two main components to
child custody: physical and legal custody. When we talk about physical custody, we are
referring to a patient who has physical charge of the child in their home.
This home will make up the residency for the child, which will be where
they live and spend the majority of their time. Typically, a child will
live with one parent more than the other parent, and the parent that the
child lives with the most is responsible for the day-to-day care of the
child. In this way, there is usually some overlap between physical and
legal custody.
Legal custody, on the other hand, refers to a parent having the legal authority to make decisions for the child surrounding critical matters like medical care and education. Legal custody is separate from physical custody, which means it is possible for coparents to share legal custody but not share physical custody. Parents with legal custody can also make choices about the following matters for their children:
- School or child care
- Religious activities or institutions
- Psychiatric, psychological, or other mental health counseling and therapy needs
- Doctor, dentist, orthodontist, and other health needs
- Sports, summer camp, vacation, or other extracurricular activities
- Travel
- Residence
Types of Legal Custody
There are two main types of legal custody orders: joint and sole custody.
Joint custody involves a sharing of parental responsibility for the child.
This means that both parents have the legal authority to make major decisions
for the child like the ones above. In order for this type of custody order
to be successful, the parents need to have a strong means of communication,
and it helps if they are located in the same geographical area. If this
is the case, joint custody can be a strong option for both the parents
and children.
Some of the advantages of joint custody include:
- Positive impact on the child
We know that going through major changes and separations can be stressful
for the whole family, and this includes the children involved. If it is
beneficial for the child to maintain a relationship with both parents,
joint custody will allow them to do that in a way that makes the transition
less stressful.
Despite choosing to live their lives separately, joint
custody gives each parent the chance to instill their values within their
child and raise them according to their will. Each of the parents and
the children will be able to move forward and create memories, and you
might even find that the time you spend apart will make you appreciate
the time you have together even more.
- Reduced feelings of guilt
When your child is able to maintain a positive relationship with their other parent, it will help the whole family reduce feelings of guilt they might have about the separation. You will get to rest assured knowing that your child is not losing a parent and can focus on growing up to be their healthiest and best selves.
- Sharing of responsibilities
Having a kid is a lot of responsibility, and when you have joint custody,
not all of that responsibility will fall back on you.
Joint legal custody
means that both parents share the daily responsibilities that impact the
child, including expenses. When you spend time with your child, you are
taking care of another person, which means you are also spending more
money than you would if you were alone. Having the other parent split
those responsibilities with you can make the situation far less stressful.
- Structure and discipline for child and parents
The nature of joint legal custody creates a situation that encourages both parents to institute a structured, disciplined routine. This can have a positive impact on both the parents as well as the child. It can create a sense of belonging for the child and a sense of normalcy as they navigate this new chapter. It also encourages parents to communicate when it comes to rewarding and disciplining the child for their behavior.
Sole custody is a lot different from joint custody because a parent with
sole custody has exclusive rights concerning the child.
This type of custody
arrangement is rare and is usually limited to situations in which one
parent is unfit or incapable of having responsibility over the child.
In sole custody situations, the child’s other parent does not have
physical or legal custody rights. However, having sole custody does not
necessarily mean that one parent will be able to relocate with the court’s
permission. If the other parent has any visitation rights, relocation
will put their rights at risk and will need to be addressed by the court.
Although sole custody is usually reserved for rare cases, when it is necessary,
there are a few key benefits, including the following:
- If the parents are unable to communicate properly, sole custody will reduce conflict because it will reduce their communication.
- Sole custody will allow the parent deemed fit to make major decisions with
greater ease because they are the only parent that is legally responsible.
- Sole custody will create more consistency and stability for the children involved in the case that the other parent is unfit to provide that kind of support.
- Sole custody will take away the stress of having to track down an unavailable parent to make major decisions.
- Sole custody will facilitate a way to keep the children safe when one parent is not fit to make decisions due to issues like substance abuse and instability.
- Sole custody will eliminate confusion for kids if the parents have different opinions.
No matter which kind of custody agreement is right for your family,
The Clark Law Firm is equipped to help create the best circumstances possible. The courts
in Texas will consider your wishes, the best interests of the child, and
the child’s wishes if the child is above the age of 12. We will
work to fully understand the details of your situation so that we can
represent your case well, keeping your child’s best interest in
mind every step of the way.
To learn more about children’s role in custody agreements and other family law matters, call The Clark Law Firm at (817) 435-4970 or contact us online.
Can a child decide custody? Data & age rules by U.S. state
November 17, 2020 — Many separating parents mistakenly think their child can choose whom to live with.
In reality, Georgia is the only U.S. state that lets a child choose who takes physical custody of them. Even then, the child must be 14 or older, and their choice must be approved by a judge.
Thirteen states don't have statutes requiring a judge to consider a child's preference when deciding custody. All other states (plus Washington, D.C.) do; judges there must take the views of mature children into account.
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These findings come from an analysis of current state statutes by Custody X Change, which offers parents a web app for managing custody via parenting plans, calendars, expense tracking and more.
(Scroll to end for full state-by-state data.)
"If you go to court over custody, you need to understand your state's approach to many topics, including a child's right to share their opinion," said Ben Coltrin, Custody X Change co-founder and president. "There's debate over what's more important: letting a child have a say or shielding them from parental disputes. How your state and judge view the issue will affect your case."
"There's debate over what's more important: letting a child have a say or shielding them from parental disputes."
-Ben Coltrin, Custody X Change president
It's important to note that most custody decisions are made by parents in settlement agreements; these parents can consider their child's opinion however they want. When parents can't reach agreement, then a judge decides what custody arrangement would serve the child's best interests.
Once the court issues a custody order, the child must comply. This means your son or daughter cannot refuse to see a parent who has been awarded custody or visitation time.
How old must a child be to weigh in?
All states allow judges to consider the preference of a child in a custody case, as long as the child is sufficiently mature. And, as we saw above, a large portion of states require judges to take a mature child's opinion into account.
So when is a child mature? Most states don't set a specific age, instead letting judges decide case by case.
When statutes do cite an age, 14 is most common. Three states (California, New Mexico and West Virginia) presume children 14 and older are sufficiently mature, while two (Indiana and Utah) give extra weight to the opinions of kids in this range.
Another four states (Mississippi, Oklahoma, Tennessee and Texas) presume children 12 and up are mature enough to form a preference worth examining.
Georgia law sets the youngest age. It says children 11 and up can share their thoughts with the court. (And, remember, Georgia kids at least 14 years old can choose which parent to live with, although a judge can override the choice if necessary.
)
All these states give judges leeway to hear from younger children who seem particularly mature.
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Overall, the older a child is, the more impact their wishes have on their custody case.
If your child is at least 14, a judge in any state is likely to hear what they have to say. On the other hand, a child in the single digits probably won't get to weigh in. Children between these two groups fall in a gray area, and whether they can provide input depends on their state, judge and maturity level.
Nationwide, children 14 and above can usually weigh in on custody rulings. Children 9 and under usually can't. The rest fall in a gray area.
How a child's opinion fits into the big picture
A judge never has to award custody according to a child's wishes. Other factors — such as each parent's criminal history and bond with the child — always come into play.
In addition, a judge tries to assess whether a child's preference for one parent is due to persuasion or leniency by that parent, which would give the preference less validity from the court's perspective.
For example, a 15-year-old may not get to live with her mom as she wishes if evidence shows the mother lets her drive without a license. In contrast, a 12-year-old with concrete reasons for preferring a suitable parent could have considerable influence on a judge's ruling.
How kids share their opinions
Children typically do not testify about their preferences in court because the experience can be emotional and frightening.
Instead, they usually share their thoughts in conversation with the judge, a custody evaluator or someone appointed by the court to represent their interests (like a guardian ad litem). In Georgia, a child who's at least 11 can turn in a written affidavit.
Interviews with the judge take place in the judge's office and are thus known as in-chambers or in-camera hearings. Generally, a court reporter and the child's legal representative attend. Sometimes the parents' lawyers are also allowed in but not the parents themselves.
Some judges ask the child directly whom they'd like to live with, while others only ask related questions like, "What do you do for fun with your mom?" In certain states, both parents must consent before the child may speak with a judge.
Other factors that vary include whether parents can suggest questions for the interview and whether they can read the transcript.
State-by-state data
| State | Judge must consider a mature child's opinion? | Age guidelines in the law |
| Alabama | Yes | |
| Alaska | Yes | |
| Arizona | Yes | |
| Arkansas | No | |
| California | Yes | A child 14 or older gets to address the court, unless the court determines it's not in the child's best interest. A child under 14 also gets to address the court if it's in their best interest. |
| Colorado | Yes | |
| Connecticut | No | |
| Delaware | Yes | |
| Florida | No | |
| Georgia | Yes | A child 14 or older has the right to select which parent they live with, unless a judge finds the selected parent does not serve the child's best interests. The judge considers the desires of a child at least 11 but not yet 14. |
| Hawaii | Yes | |
| Idaho | No | |
| Illinois | Yes | |
| Indiana | Yes | The court considers the wishes of the child, with more consideration given if the child is at least 14. |
| Iowa | Yes | |
| Kansas | Yes | |
| Kentucky | Yes | |
| Louisiana | Yes | |
| Maine | Yes | |
| Maryland | Yes | |
| Massachusetts | Yes | |
| Michigan | Yes | |
| Minnesota | Yes | |
| Mississippi | Yes | If the court considers both parents fit to have custody, the chancellor (judge) may consider the preference of a child 12 or older. |
| Missouri | Yes | |
| Montana | No | |
| Nebraska | Yes | |
| Nevada | Yes | |
| New Hampshire | No | |
| New Jersey | Yes | |
| New Mexico | Yes | If the child is 14 or older, the court considers their desires. If the child is under 14, the court decides custody per the child's best interests, considering factors like the child's wishes. |
| New York | No | |
| North Carolina | No | |
| North Dakota | Yes | |
| Ohio | No | |
| Oklahoma | Yes | The child gets to express a preference if the court finds this is in the child's best interest. The court considers the preference if the child is old enough to form an intelligent opinion. There's a presumption a child 12 or above is old enough. |
| Oregon | Yes | |
| Pennsylvania | Yes | |
| Rhode Island | Yes | |
| South Carolina | Yes | |
| South Dakota | No | |
| Tennessee | Yes | The court considers the reasonable preference of a child 12 or older. The court may hear the preference of a younger child. An older child's preference is normally given greater weight. |
| Texas | Yes | A child 12 or older gets to speak with the court in private. A child under 12 may get to. |
| Utah | No | The court may consider the wishes of the child, considering the child's maturity. The desires of a child 14 or older get added weight. |
| Vermont | No | |
| Virginia | Yes | |
| Washington | Yes | |
| Washington, D.C. | Yes | |
| West Virginia | Yes | The court accommodates the preferences of a child 14 or older, if it's in the child's best interests. It also accommodates the preferences of a younger child mature enough to express an opinion, as long as this is in the child's best interests. |
| Wisconsin | Yes | |
| Wyoming | No |
Who will the child live with...
Ekaterina Zadorozhnaya
Lawyer of the Voronezh Regional Bar Association
February 15, 2021
Tips
Pay attention to the date of publication of the material: the information may be outdated due to changes in legislation or law enforcement practice.
If he decides to leave home before the age of 18, or if his parents get divorced and cannot agree on his place of residence?
With which parent will the child stay after the divorce?
The law determines the place of residence of children with their parents. When the parents live together, the child lives with them, when separated - with one of them. With whom exactly - the parents themselves or the court should decide if the parents cannot or do not want to agree. At the same time, a child over 10 years old can express their opinion on the issue of determining their place of residence. It is taken into account by the court along with other evidence in the case.
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Parents - how to register and remove a child; how to determine the size of the shares in the ownership of an apartment purchased with the involvement of mother capital, and how to sell it; on the transfer of real estate to the child in respect of the fulfillment of maintenance obligations and the involvement of the second parent to participate in additional expenses for the child
December 08, 2020 Tips
When determining the place of residence, the court takes into account: the age of the child; the relationship that exists between each of the parents and the child, his attachment to them, brothers, sisters and other family members; moral and other personal qualities of parents; their occupation and mode of operation; financial and marital status; the opportunity to create conditions for the child's upbringing and development.
Other circumstances are also taken into account that characterize the situation that has developed in the place of residence of each of the parents 1 .
It must be borne in mind that in itself the advantage in the material and everyday situation of one of the parents is not an unconditional basis for satisfying his requirements.
(See the discussion "Parental Rights", in which experts talk about changes in family law, as well as litigation regarding the rights of minors, including determining the place of residence of a child in the event of a divorce of parents and the procedure for children to communicate with parents living separately ( a list of materials on the topic is available in the column on the right on the discussion page)).
What if the teenager no longer wants to live with his family?
The rule on the joint residence of a child with parents strictly works until his 14th birthday. The law does not clearly indicate with whom children over 14 years of age should and can live.
But there is a rule that teenagers between the ages of 14 and 18 are still children 2 .
Children, as mentioned above, have the right to live with their parents or one of them. When a child is under guardianship until the age of 14 or under guardianship after reaching this age, the same rules apply: the child lives with a guardian or guardian. In exceptional cases, when cohabitation with a guardian violates the rights of the child, the law allows them to live separately. The necessary conditions for this are: the age of the child is over 16 years old, the consent of the guardianship and guardianship authority. There is no such option for parents.
Recently, AG received a letter from a 16-year-old girl who did not want to live with her mother and asked if she had the right to live with her boyfriend.
If a child over 14 years old does not live with his parents, but with another person, then it is he who is responsible for the development and upbringing of a teenager.
If these obligations are not fulfilled, the child may be transferred to the care of the guardianship and guardianship authority 3 . In addition, the parents of the child will be able to demand his return from this person in court. Thus, it will be difficult to leave your parents without their consent and live independently.
In which case will a teenager still be able to live separately from his parents?
The situation described above changes when the child acquires full legal capacity before the age of 18. In law, this phenomenon is called emancipation. You can get full legal capacity ahead of schedule from the age of 16.
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The law specifies two ways of emancipation: the beginning of the labor activity of the child and his marriage.
A teenager can work both under an employment contract or contract, and as an entrepreneur, or be self-employed. Marriage between the ages of 16 and 18 is possible only for exceptional reasons with the consent of local authorities. Up to 16 years of age, marriage is allowed to register only in cases that are specified in regional legislation. After marriage, a teenager acquires full legal capacity, and this will remain even if he decides to divorce before adulthood.
Emancipation is possible by decision of the guardianship and guardianship authority or through the court. In the first case, the consent of both parents is required. If they do not agree, a child over 16 years of age can independently apply to the court with a demand for his emancipation.
As soon as a teenager becomes emancipated, he can independently decide where and with whom he will live. Until then, the child must live with his parents.
1 Clause 5 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated May 27, 1998 No.
10.
2 Article 1 of the Federal Law of July 24, 1998 No. 124-FZ “On Basic Guarantees of the Rights of the Child in the Russian Federation”.
3 Article 68 of the Family Code of the Russian Federation.
See also:
From what age is the child's opinion taken into account in divorce of parents
🔥 From what age is the child's opinion taken into account in court during a divorce
The place of residence of a minor, according to the family law of Russia, is the place of residence of his parents or guardians . Therefore, one of the main issues that arise during the dissolution of the marriage of spouses who have children is determining their further place of residence .
There are two ways to decide where the children will live after the parents divorce:
- by reaching an agreement between the spouses 0093 ; .
In the event of a dispute about the future place of residence, the court takes into account the interests of minors and their opinion .
According to Art. 57 of the Family Code of the Russian Federation, children have the right to express their opinion regarding issues affecting their interests and to be heard during the proceedings.
The wishes of a child who has reached the age of 10 must be taken into account in court, unless this is contrary to his interests. However, the decision should not be based only on his opinion: the final determination of the place of residence is made based on the interests of the children.
Teenagers over the age of 14 are required to hear in court on the issue of further residence. In addition, they have the right to independently submit a statement of claim in order to change their place of residence (according to paragraph 2 of article 56 of the RF IC).
🔻 Is the child's opinion taken into account in a divorce?
According to paragraph 2 of Art. 65 of the Family Code of the Russian Federation, all issues related to the upbringing of children are resolved by mutual consent of the parents.
Therefore, in the event of a divorce, the preferred way of deciding who the child will live with is agreement between spouses .
In the event that such an agreement cannot be reached, the dispute over the place of residence of the child after the divorce of the mother and father is considered in the district court . According to paragraph 3 of Art. 65 of the RF IC, this issue is resolved based on the interests of the child and taking into account his opinions . The main factors that influence the determination of the future place of residence are:
- Attachment to mother, father, brothers, sisters and other family members. The degree of closeness of the child with family members is clarified by guardianship officials and teachers. Observing behavior and finding out his relationship to parents, as a couple, and to each individually, can reveal which of the family members he is most attached to.
- Moral qualities of mother and father. The psychologist and guardianship authorities take into account education, profession, the presence of positive characteristics for each spouse. Particular attention is paid to the fact of abuse of alcoholic beverages or drugs.
- Child's age . Judicial practice shows that a child under the age of three, in the vast majority of cases, is left with his mother, as he needs constant care and attention. The place of residence of children over this age may be determined by the place of residence of the father.
- Opportunity to create conditions for education and development . The court takes into account the work schedule of each of the parents, the time that they are able to devote to children. For example, if a father works on a rotational basis, he is not able to fully engage in raising a child.
- Financial and marital status of each of the spouses.
The court takes into account the income level of each parent, which can be confirmed by an appropriate certificate from the place of work, the living conditions of the mother and father. An equally important factor will be the presence of relatives who will be able to raise children during the absence of a parent, therefore, in judicial practice, the place of residence of a child is often determined with the parent who has already created a new family.
Thus, the minor's opinion is only one of the factors on which the decision of who he will live with will be based. The court can take into account his desire by conducting a survey with the help of a psychologist and guardianship authorities before the meeting, and also listen to the child himself.
🔹 When parents divorce, the court takes into account the opinion of a child who has reached 10 years of age
The opinion of children who have reached 10 years of age, the court must take into account when deciding with whom they will live.
However, their presence at the meeting is not mandatory. First of all, the guardianship authorities and psychologists find out whether it would harm the minor to participate in the hearing.
In order to find out the opinion of children about the place of residence and the degree of their attachment to mother and father, a psychological examination may be ordered. The results are presented during the hearing.
If the presence of the child in court is necessary, according to Art. 179 of the Civil Procedure Code of the Russian Federation, his questioning takes place only in the presence of a teacher.
- Hearing on future residence usually takes place without parents present to eliminate the possibility of pressure.
- At the same time, not only the child's opinion itself is clarified, but also whether it is imposed by one of the spouses. According to paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 27, 1998 No.
10, when interviewing children, it is necessary to establish how much they themselves are aware of their interests, how they justify their desire to live with mom or dad.
The desire of children can be a decisive factor in determining their future residence, but in some cases the child's judgment may conflict with its security . For example, if the dissolution of a marriage is due to domestic violence, it is dangerous for children to live with someone who has shown aggression.
🔹 From the age of 14, a child has the right to choose with whom to live
The place of residence of a minor under the age of 14 is the place of residence of his parents or guardians, in accordance with paragraph 2 of Art. 20 Code of Civil Procedure of the Russian Federation. Upon reaching the age of 14, he has the right to independently choose with whom to live.
If at the time of the divorce proceedings the children have reached the age of fourteen years, then in the absence of an agreement between the parents on the place of their further residence, in accordance with paragraph 3 of Art.
37 Code of Civil Procedure of the Russian Federation, court is obliged to invite teenager to participate in the meeting.
A teenager who has reached the age of 14 can live and be registered separately from their parents - subject to their consent and the consent of the person in whose territory the child will live. Minors over the age of 14 are considered mature enough to live separately from their parents, so during the trial they may submit a petition to determine the place of residence of a teenager with a third party.
According to paragraph 2 of Art. 56 of the RF IC, a teenager who has reached the age of fourteen has the right to apply for the protection of his interests to the guardianship authorities or the court. In this case, the wish of which parent to live with will be decisive.
Of course, according to paragraph 1 of Art. 63 of the RF IC, parents have the pre-emptive right to bring up their children.
However, situations often arise when other relatives (for example, grandparents) are directly involved in raising and caring for the child.
Therefore, a teenager who has reached the age of 14 has the right to apply to the guardianship authorities with a request to appoint a guardian for him, indicating a specific person (according to paragraph 3 of article
13 of the law of 04.24.2008 No. 48-FZ "On guardianship and guardianship") .
🔻 Court decision on living with one of the parents contrary to the opinion of the child
Despite the fact that the judgment of children who have reached the age of ten, one way or another must be taken into account when determining their place of further residence, this factor cannot be decisive. The court decides with whom the minor will live, first of all, based on his interests .
The court, when hearing the child's opinion about the place of his further residence, takes into account that the desire may be based on pity for the parent or the softness of one spouse in choosing the methods of education.
Therefore, a court decision can be made, contrary to the desire, which was voiced by a minor.
An important, but not the only indicator, is the material well-being of the spouses. The court will also pay attention to the opportunity to devote the necessary time to education (for example, to the work schedule of each of the spouses). No less important circumstance will be the moral qualities of parents and other factors.
🔹 Conclusion
The agreement of the spouses on the place of residence of their children after the dissolution of the marriage speeds up the time of the divorce process, and also reduces the negative impact of divorce on the psyche of the child. Despite the fact that the desire of a minor is an important factor in determining his future place of residence, the court will definitely offer the parents to decide on their own with whom he will live after the divorce and conclude a settlement agreement.
Comments 6 of 6 Read previous comments Aidar 2018.
02.18 18:25
I have three children, divorced 4 years ago. The children live with their mother. In April, the eldest son will be 10 years old!
Wants to live with me, can I count on a court decision in my favor?
Naziza Rakhim Arlievich 2018.06.29 02:16
Aidar, call me if you can 0555434471. Thank you in advance, I want to consult.
Lara 2019.01.14 22:44
My son is 12 years old and my 2nd is 8 years old. Will the court take into account the views of both children? Thanks in advance.
1 Lara 2019.05.09 12:33
Will be. But what about the fact that brothers cannot be separated.
Anna 2019.07.31 22:28
Hello, divorced from her husband, the child is 5 years old, lives with me. But the child's father wants to take her as soon as possible. I work, the child has his own room, goes to the garden and to circles.
Friends, my work will be on my side. What are his chances?
🔥 Determining the place of residence of minors in case of divorce of parents: the opinion of a child who has reached what age is taken into account by the court?
Litigation to determine the future place of residence of a child is a fairly complex proceedings that require the court to study and evaluate many determining factors.
To make a decision, the judge usually takes into account the actual living conditions of each of the spouses, their current civil status, the characteristics of neighbors and colleagues, the opinion of competent inspectors of the relevant regulatory authorities, the degree of attachment of children to one or another family member.
The court also takes into account the opinion of a child who has reached ten years of age when the parents divorce. It is this point that is the most controversial and ambiguous for experts in the field of disputes to determine the place of residence of children after a divorce. That is why it is necessary to thoroughly understand the objective and subjective role of this argument in the final court decision.
🔻 Articles of the Investigative Committee of the Russian Federation on the place of residence of children after the termination of the marriage of parents
The procedure and principles for the correct determination of the place of residence in accordance with Russian law can be determined by agreement between spouses in accordance with Article 65 of the Family Code.
And if it was not possible to come to an agreement, then such a disputable situation is resolved in court, with all the attributes of the corresponding dispute that arises during the divorce proceedings.
The decision made must necessarily comply with all the provisions of Articles 69 and 73 of the Family Code, which give each of the spouses certain parental rights, and if the agreed rights were nevertheless infringed, such a decision can be challenged in the appellate courts.
The direct participation of children in court proceedings, the procedure for interviewing them and the principles for taking into account their opinions are stipulated in Article 57 of the same document. And depending on the age of the child, other rights will be available to him, in particular, those stipulated by Article 56 of the Civil Code of the Russian Federation.
🔻 From what age is the child's opinion taken into account when parents divorce?
It is customary to interview children to determine their future place of residence only among those who have reached the age of ten.
In this case, full compliance with the procedure defined by law is mandatory. This does not at all imply the presence of a minor at the trial, while his opinion will be taken into account, but will not be a determining factor.
In addition, the opinion of a minor will not be taken into account if a child custody expert or psychologist issues an opinion that the child's choice is harmful. As mentioned earlier, there is another key age - this is 14 years old. A child who has reached this age gets the opportunity to exercise the rights of the already mentioned Article 56 of the Civil Code.
Fourteen-year-olds have the right to choose which parent's place of residence they want to live in, or even choose a third-party guardian. According to the Code of Civil Procedure of the Russian Federation, the participation of fourteen-year-old children in hearings on divorce proceedings is mandatory.
🔻 How is the questioning of children?
Incorrect interviewing of minors, in addition to leading to the court ignoring the testimony as an argument, may result in additional psychological trauma to the child.
That is why the procedure implies the following rules:
- you must first obtain the permission of a representative of the guardianship authorities and a psychologist, indicating that the interview will not harm the minor;
- to increase the reliability of the data, the regulatory authorities may appoint a psychological examination, the results of which will be presented during the meeting;
- to exclude pressure from parents, their presence is allowed in exceptional cases, most often related to interviews with children with disabilities;
- , not only the opinion itself is recorded, but also the completeness, as well as the reliability of the argumentation of his decision by the child. Also, a mandatory attribute of the survey report is the subjective opinion of the expert about the degree of imposition of the child's judgments.
You can ask for additional expertise if you have any doubts about the competence or impartiality of the inspector.
There are cases where the physical participation of children is necessary in court hearings. In such situations, the performance of a minor is allowed only for the period of time necessary for this and only in the presence of a certified teacher.
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🔻 When is the child's voice about who he wants to live with not taken into account?
First of all, the opinion of the minor will not be taken into account by the judge in the proceedings if the interview procedure has been violated.
In this case, the hearing of the case can be postponed if, based on the psychological evidence of the minor, it makes sense to repeat the interview.
In addition, the court will not consider the desire of a minor if the expert opinion of a psychologist or teacher indicates that the minor does not reproduce his own opinion, but only broadcasts the thoughts of one of the parents due to fear or pressure.
The opinion of children will not be taken into account by the court also in case of strong arguments from representatives of the inspecting authorities that the choice made threatens the physical or psychological health of the child, not to mention the threat to life. Also, a similar decision will be made by the court if there has already been a manifestation of violence on the part of one of the spouses.
Well, the last reason for refusing to accept the results of the survey as a significant factor by the court is an insufficient level of consciousness or psychological health, identified in the framework of a forensic psychological examination.
🔻 Do they ask for the opinion of guardianship authorities?
Especially if the family for one reason or another is registered with guardianship and guardianship inspectors, representatives of this controlling organization will participate both as an expert and as a witness.
A child welfare specialist will be present during the assessment of housing options and other critical aspects.
Then they will make recommendations for the court in writing. In fact, the guardianship authorities are the representative of the interests of the minor and can make claims and petitions.
And if the legal proceedings involve the deprivation or restriction of parental rights, without the participation of the relevant regulatory authorities, it will not even be possible to register a claim.
🔻 Whose side is the court in a divorce on the issue of a child?
De jure, there can be no question of any gender bias. The judge must make decisions based on objective reasons, indications and conclusions.
With the exception of children under the age of three, who, for physiological reasons, are determined by the mother's place of residence. In all other cases, the court must rely solely on the guidelines given in the article.
The likelihood of a decision to determine the place of residence of the child in your favor directly depends on the number and quality of references collected before the case is heard in court.
But de facto, as statistics show, the lion's share of court decisions are made in favor of determining the place of residence next to the mother - about 85%. This is often explained by the psychological attachment of children to their mother and thus the factor of children's opinion.
Very often, preference is given to the wife, even with the obvious moral and material advantages of the father. That is why men are much more in need of legal advice and assistance.
🔥 At what age does the court take into account the child's opinion about which parent he wants to live with after a divorce?
According to the law, the procedure for dissolution of marriage in the presence of children under the age of 18 in the family is carried out in court, taking into account the settlement agreement previously concluded between the spouses.
If the husband and wife could not independently agree on the place of future residence of common children, then the court is obliged to resolve the issue, taking into account the opinion and interests of each child.
🔻 At what age does the court take into account the opinion of the child in a divorce?
The ability to reason, to substantiate one's judgments, is formed in children far from immediately. Considering this aspect, the legislation establishes a restriction according to which the opinion of a minor is officially recognized upon reaching the age of 10. This is the answer to the question of how old it is taken into account by the court when divorcing parents.
Article 57 of the Family Code gives the child the right to express his own position in the event of family disagreements that affect his interests. The position of the child must be taken into account in court. The desire to live with mom or dad can be a decisive argument in establishing the place of residence of the child after the parents divorce, except in situations that are contrary to his interests.
🔻 How does the child express his desire in court?
The judge most often deals with the wishes of the child at a closed meeting, in the absence of close relatives, which makes it possible to exclude their influence.
During the conversation, the presence of a psychologist, class leader, social pedagogue is obligatory. With their help, the court finds out how the child came to such a decision and what influence could have had on him in making the decision.
If there are medical documents confirming that such actions will adversely affect the child's condition, then such a questioning is not carried out by the court.
🔻 What circumstances does the court take into account when deciding with whom the child will stay?
When making a decision on the place of further residence, the judge takes into account several factors:
- the child's age;
- which parent the child is more attached to;
- personal moral qualities of spouses;
- the ability to ensure the development of the child.
In case of a divorce initiated by the mother, as a rule, the baby stays with her. The same applies to children under 5 years of age, since their attachment to their mother is the highest.
From the age of 10, the court is obliged to ask the opinion of a minor in a divorce, but the decision is made based on the totality of all factors and is not always consistent with the wishes of the children. The personal position of a 16-17-year-old teenager who consciously decides with whom he wants to live becomes decisive.
Evidence of emotional attachment are photographs and video materials about spending leisure time together. They can be supplemented by eyewitness accounts.
To determine the personal qualities of each spouse, references from the place of work, from the class teacher, testimonies of relatives, friends, neighbors are submitted to the court. The negative moral aspects of a person are confirmed by objective facts (the presence of a criminal record, the use of prohibited substances, alcohol, etc.
).
An important factor is the financial and material security of the parent, as well as the availability of opportunities to ensure the comprehensive development of the child, his upbringing and education. At the same time, the presence of immovable property in the ownership of the father or mother is checked.
A parent who does not live with children is required to pay child support. This is taken into account when making a decision.
All arguments presented are taken together. None of them has a predetermined strength.
🔻 Can the court rule against the child's wishes?
If the child's opinion is contrary to his interests, then the decision may not be in his favor. The court has the right to prohibit the child from staying with one of the parents if:
- the parent's physical and mental health does not allow taking care of the child;
- parent regularly shows aggression and violence, including moral;
- the parent leads an immoral and asocial lifestyle;
- the parent does not have a place to stay with the child;
- The parent does not have enough money to support the child.
🔥 From what age do they give the child the right to choose a parent after a divorce
🔻 From what age the child's opinion is taken into account when parents divorce
When a divorce occurs, children suffer the most. Instead of mom and dad, they will now live permanently with only one of the parents, they will only see each other with the other. If the spouses cannot agree on who their common minor children will live with after the divorce, then this dispute can be resolved in court. Russian legislation gives children the opportunity to choose which parent to live with. Thus, the question arises of at what age the child's opinion is taken into account in court.
The answer of lawyers and a detailed description of the procedure, made on the basis of laws and judicial practice, you will find in this article.
Children have the right to vote in court when parents divorce from the age of 10, because taking into account the opinion of a child who has reached the age of 10 years is mandatory for the court (Article 57 of the RF IC). The judge interrogates the child in an environment that excludes the influence of interested parties on him
🔻 With whom do minor children stay when their parents divorce
/ / Views 31283 Content Perhaps the most intractable question that arises in the process of divorce is with whom Will there be minor children?
After all, children are not cars-apartments, not cups-spoons and sofas-commodes, which can be given a material assessment and divided equally. Every child is an individual. From which of the parents - with dad or mom - the court leaves the children after a divorce, how they will communicate with the other parent, their future fate depends.
The court has a great responsibility to answer these difficult, acute and painful questions.
In the public mind, two opposing arguments have been formed about the division of children between father and mother. On the one hand, there is a firm conviction that the child will remain with the mother due to physical and mental ties, on the other hand, the confidence that the father’s material capabilities and influence will help him keep the child for himself.
🔻 What are the rights of parents to a child after a divorce
- Parental disputesAgreementDispute resolution in courtParents' rights after divorceFather's rightsMother's rightsIf the father is againstConclusionWhen parents decide to divorce, the most difficult issue concerns children. Most often they stay with their mother, and their father lives at a distance.
But he has the same right to education as his mother.
The rights of parents to a child after a divorce are regulated by family law. Formally, mother and father have equal rights.
But in practice, most often the children stay with their mother, and the father's participation is reduced to the payment of alimony.
Although there are cases when it is the father who continues to raise children. Parental disputes The best thing that spouses who decide to divorce can do is to part peacefully and reasonably. Everyone knows that children are the most vulnerable in this situation.
🔹 The rights of the father and mother to the child after divorce, the rights of the child in case of divorce of parents
/ / Views 7575 Contents A common practice is to leave the child with the mother after a divorce. Does this mean that the mother has more rights and more obligations towards the child than the father?
Are the rights of parents equal? To tell the truth, there is no unequivocal statement that after a divorce a child should remain with his mother, there is no law. But the law enshrined the equality of the rights of parents, regardless of whether they are married or divorced.
This means that both father and mother have the right to communicate and spend time with the child, take part in his upbringing and education.
Divorce is not an obstacle to the full exercise of their parental rights. Former spouses do not have the right to limit each other in participation in the life of the child.
Legislation establishes the rights of parents after divorce.
🔻 Choice of children with whom to live with when parents divorce
> > 4 Sep 2014 16:16 At what age do children themselves have the right to choose which parent they would like to live with during a divorce. Author: andrey Hits (2343) City: Moscow, Novosibirsk According to Art. 57 RF IC: Article 57.
The right of the child to express his opinion The child has the right to express his opinion in resolving any issue in the family that affects his interests, as well as to be heard in the course of any judicial or administrative proceedings. Consideration of the opinion of a child who has reached the age of ten is mandatory, except in cases where this is contrary to his interests.
In the cases provided for by this Code (Articles 59, 72, 132, 134, 136, 143, 145), the guardianship and guardianship authorities or the court may make a decision only with the consent of a child who has reached the age of ten years.
Thus, from the age of 14, the child has the right to independently choose with which parent to live.
🔻 What rights does a father have after a divorce?
In connection with the frequent situations when spouses get divorced, the question of what rights the father retains over the child after a divorce is relevant.
Many parents do not know what they are entitled to with regard to their own children after a divorce.
And this situation leads to numerous disputes and litigation between former spouses. Therefore, each parent should know what rights the Family Code provides and observe them in relation to each other in the event of a divorce.
The most important thing that every parent should remember in relation to their child is that divorce is not a reason for deprivation of parental rights.
Therefore, if there is
🔻 The rights of the child after the parents divorce
According to official statistics, every second couple breaks up in Russia every year.
