Can a child decide who to live with in a Michigan custody case?

The short answer is no, however, under Michigan law in every Michigan custody case a child has a right to be heard and the court must consider the child’s preference in awarding custody and parenting time.


In every Michigan parenting time or child custody case the trial court is required to consider the statutory best interest factors set forth in Michigan Compiled Laws Section 722.23.

Best interest of the child factor (i) requires the trial court to examine the reasonable preference of the child, if the court considers the child to be of sufficient age to express a preference.

At what age can a child decide who to live with?

The Michigan Court of Appeals answered this question in the case of Maier v. Maier. In Michigan, a child over the age of six is presumed to be capable of forming a reasonable preference and in the case of Kubicki v. Sharpe. However, just as adults may lake the capacity to give competent testimony (i.e. if disabled), a child’s capacity may be compromised by circumstances in his/her life.

The Court must interview the child.

In the case of Kubicki v. Sharpe, the Michigan Court of Appeals decided that the trail court must conduct an interview of the child in all but the most extraordinary of circumstances stating:

Regardless whether the parties wished for an interview, the court was affirmatively required to consider the child’s preference.

Kubicki v. Sharpe pgs. 544-545

Furthermore, parents cannot agree to waive this requirement.

So can a child decide who to live with?

The answer is no because a trial court must consider all twelve best interest of the child factors and the child’s preference (factor (i)) is only one of the twelve best interest factors.

About Findling Law

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I have been exclusively practicing divorce and family law in Michigan for over two decades. The attorneys at Findling Law all share the core value of practicing law to help people navigate change in their lives, without compromising principles.  We specialize in high socio-economic, high-profile and high-conflict cases, while also working with clients of all backgrounds. We recognize that the most important aspect of the practice of law is the application of the law to your specific circumstances.That is why we provide more free information on divorce and family law than any other Michigan law firm. We want to help you manage your situation. Allow our exceptional legal team to help you navigate the change in your life, without compromising principles.

By:  Daniel Findling

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