Q: My husband and his ex wife have joint custody over their children together. Can his Daughter live with us?
While they do have joint custody, the ex wife is the primary caregiver. My husband pays child support to her each week. We live in the same county and see them twice a month, every other weekend. His daughter has been expressing that she wants to live with us for the past 3 years now. She is turning 12 this year and I always thought at that age the child could legally decide which parent to live with, even if the primary parent doesn't agree. What do we have to do in this situation? The ex wife will want to take us to court over it.
A: There are several factors the court will use in forming a parenting plan that is in the child's best interest, including the wishes of the child. There is not a statutory age in which a minor child gets to choose where she lives, however as the child matures, the Court will certainly consider the child's wishes and the reasons behind those wishes. So even though a 12 year old says they want to live with Parent A or Parent B, the more important question is what are the child's motivations to live with Parent A or Parent B. And remember that it is only one factor, not the only factor. In my experience, the school district and grades of a 5th or 6th grader are also very important. For example, a child that is a good student and otherwise doing good in school, but would be uprooted if a change in residential custody takes place, then this would be an important factor for the Court to consider as well. So if the child is doing good in school and you happen to reside in the same school district, this would increase the odds of a change in residential custody; or on the converse, if the child is not doing well in school for some reason and you reside in a different school district, perhaps this would be favorable.
In order to get this question in front of the Court, your husband will need to file a Motion to Modify the parenting plan and set forth the reasons why it's in the child's best interest to reside with him.
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