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Child Custody – Can a child decide who to live with?

Can a child decide where they want to live?

Michigan child custody law is governed by Michigan Compiled Laws section 722.23 often called the best interest factors.  Factor (i) of the best interest factors provides that a court should consider 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 where they want to live?

While there is no concrete definition of what is a “sufficient age to express a preference”, the Michigan Court of Appeals in the child custody case of Bowers v. Bowers, 475 N.W.2d 394 (1991) decided that children ages six and nine were old enough to have their preferences given some weight.  Clearly, the older and more mature a child is, the more weight would be given to the child’s preference.

Should a court ask the child or should the child decide who to live with?

While it does not appear to be an absolute requirement for a Michigan child custody Judge to ask a child where he/she wants to live, the Judge must take a child’s preference into consideration.  You can ask the court to interview a child and the court must do so unless it provides a good explanation for the refusal to do so.   In the Michigan child custody case of Lewis v. Lewis 73 Mich.App. 563, 252 N.W.2d 237 Mich.App. (1977), the Michigan Court of Appeals reversed a trial court for its refusal to interview a child about where he wanted to live because the Judge did not provide an explanation as to why he refused to interview the child.  The Michigan child custody case of Stringer v. Vincent, 161 Mich App. 429 (1987) also found that a trial court’s failure to interview the children was error requiring reversal.

If a child decides to live with one parent, does the court have to approve?

No.  Michigan divorce and child custody law provides that a court must approve any change in custody.  However, Michigan divorce and child custody case law is divided on how much weight a child’s preference is given.  Take for example the Michigan child custody cases of:

  • DeGrow v. Degrow, 315 N.W. 2d 915 (1982) the Court of appeals decided that a child’s preference is only one element to evaluate in determining best interests of child.  A court must consider all 12 Michigan child custody best interest factors.
  • Curylo v. Curylo,104 Mich. App. 340 (1981), the Court of Appeals decided that “a change in the children’s preferences as to the custodial parent will almost never justify the grant of a new trial. The preferences of the children may be too easily influenced by the break-up of the marriage and competition for their love between the parents.  .  . This situation would place undue emotional pressure on the children and parents alike.”
  • Chizmadia v. Chizmadia  unpublished WL 786032 March 9, 2002:  The parties were equal on every factor except the child’s preference.  “The court held that the hazards of which Curylo warns are not present here.” When changing custody.

Can a child decide where they want to live?

The answer is no.

Can a child’s preference on where they want to live have weight?

Absolutely.

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