As children enter their teen years, a common question arises both from children and from their parents, "When can a child decide which parent they live with?" The simple answer to that question is, "When the child reaches the age of 18". But a full answer is considerably more complicated:
Parental Agreement - The parents may agree to abide by the child's wishes, with or without amending an existing custody order;
Picking Your Battles - One parent may decide to go along with the child's wish, not out of agreement or belief that it is the best outcome, but out of recognition that the consequence of saying "no" may be worse for the child than agreeing to modify custody.
Custody Litigation - If the child's circumstances have materially changed since the most recent custody order, a parent may ask a court to revisit the custody case and to hear the teen's preference for a new custody order.
As children enter adolescence, and more so when they enter high school and approach the age of majority, their lives evolve. Their peer relationships change. Their extracurricular activities may become more important to them, and may involve a significant investment of time. Their homework becomes more complicated. They may have part-time jobs.
As a teenager's life becomes more complicated, so does the process of shifting between households. Even with joint custody where parents live close to each other, a teenager may have an increasingly large load of items that must be transported back and forth between homes with each transition.
Sometimes the primary custodian will plan to move to a different school district, city or state, and the child will want to remain in the same school, with the same friends and activities, something that necessarily means living with the other parent.
States impose the same best interest standards on all child custody cases, no matter how old the children may be. At the same time, courts recognize the fact that older children have more clear and more informed preferences relating to custody, and that custodial arrangements that may work for younger children may not be appropriate for teenagers.
When a custody order is already in effect, as children enter their teenage years, a court will be reluctant to reopen a custody case just because the child is older. However, when a teenager is acting out has started to struggle in school, or a parent with joint or primary physical custody wants to relocate to another school district or state, the child's age and changes in the child's life make it more likely that the court will find the type of changed circumstances that warrant revisiting an existing custody order.
Courts are more inclined to follow the custodial preference of a teenage child, and it is unusual for a court not to issue a custody order that is consistent with the expressed wish of a sixteen- or seventeen-year-old minor. That is to say, in court, an older teen's wishes will almost always be followed.
Although courts recognize that children of any age may pick a home for the wrong reasons, and that other factors relevant to custody may be more significant than the child's preference, at a certain point attempting to overrule a teenager's preference is more likely to create conflict than it is to resolve a custody dispute.
The older the teen, the more sensible it becomes for parents to try to work out a custodial arrangement that respects the age, maturity and wishes of their teenaged child, than it is to expend the time, money and energy it takes to litigate a custody case.
Whether you divorced or separated when your child was younger, or if your children are teenagers at the time your custody case goes to court, it makes sense to discuss custody issues with your teenaged child. Keep the door open for a discussion of the custodial arrangement, and whether it is working.
You may wonder why you should have a discussion involving custody, even before your child has objected to the current arrangement. By inviting discussion of custody, you can help avoid the tension and resentment that may otherwise build in your teenager, and potentially result in a teen's demand to live with the other parent. But even in the absence of resentment, remember this: Your child did not ask for two households and a custody schedule, and should not suffer avoidable negative consequences from the break-up of your relationship with the other parent.
A child who is angry or resentful about a custodial arrangement may not articulate that anger or resentment, but may instead express dissatisfaction by acting out, or have outbursts or engage in argument over issues that don't seem related to custody. If your child knows that discussion of custody is welcome, the child's feelings are much less likely to come out either indirectly or inappropriately.
When discussing custody issues with your child, listen to your child. Be non-judgmental. Recall that teenagers both want and need to build an identity that is independent from that of their parents, and part of your job as a parent is to help with that process, at times even when it feels like your child is making a mistake.
As a child becomes older, both parents should discuss how the child's age and interests will affect the custody order and parenting time schedule. With good communication and planning, both parents will be aware of emerging issues and scheduling conflicts, and have planned for them in advance. A non-custodial parent should not hear for the first time, "Junior isn't going to visit you this weekend", as a weekend visit approaches.
Flexible Custody Arrangements
Parents may proactively work some flexibility into their parenting exchanges, agreeing in advance that an adolescent child will at times want to participate in an activity that will require the child to miss scheduled time with a parent. They may discuss when and how any make-up parenting time will be scheduled. That way, rather than being surprised and disappointed when the child wants to attend a sleepover or a can't-miss sporting event or concert, there is no need for argument or disappointment: A plan is already in place.
If a teenager is having difficulty with the frequency of exchanges, parents may consider altering the schedule. If parents have joint custody, alternating by week, they may consider switching to a biweekly or even a monthly exchange. Parents can consider modifying the schedule for the school year, for the summer months, or both.
When children are young, it's necessary for a custody schedule to focus upon the parents' schedules and work demands. The older and more self-reliant the teenager, the more a custody arrangement should focus on the teenager's schedule. A teenager who can reasonably rely upon public transportation, a bicycle, or driving a vehicle, in lieu of being transported by parents, need not be under a custody order that anticipates that parents will provide that transportation. However, transportation issues aside, parents should not lose sight of the fact that even older teens may benefit from scrupulous parental supervision.
Parents may also agree that any modification should be for a trial period, revisiting any modified custodial arrangement at the end of an agreed period to ensure that it's working for them and for the child. If it's not working, more adjustments can be made, or the parents can consider reverting to the prior arrangement.
Child Support Issues
Although parents can agree to modify their parenting schedules without going back to court, when child support payments are involved, parents need to remember that courts will not retroactively modify child support. Payments will continue to be due under the existing child support order, until a parent files a motion to modify support.
If a modification of the parenting schedule will significantly affect the amount of support that one parent must pay to the other, the parents must consider whether it is appropriate to stipulate to a court order that modifies support based upon the new parenting schedule.