Do Children Get a Say in Child Custody in Utah?

do children get a say in child custody

Anyone who has ever had a child knows that from a very young age, they have opinions about lots of things: what to wear, what they want to eat, whether they’re willing to take a nap. As they grow, so does their desire and ability to have input into the things that affect their lives. When a child’s parents divorce, and each parent is in a different household, the child may have opinions about where they want to live. Is there an age a child can decide which parent to live with in Utah?

Not exactly. While a child’s wishes about which parent to live with do matter, those wishes are not the only determining factor in Utah child custody.

How a Child’s Preference Affects Physical Custody

To understand how a child’s preference about custody fits into the decision-making process, it’s helpful to briefly review Utah child custody law.

There are two types of custody: legal custody, which means decision-making authority over major decisions for a child. In Utah, joint legal custody is presumed, meaning that both parents get input into major decisions unless the court finds that there is a good reason that one parent should not.

When discussing the age a child can decide which parent to live with, we are generally talking about physical custody. And the child doesn’t so much decide which parent to live with as get the opportunity to have input into the decision.

Utah, like other states, determines child custody based on “the best interest of the child.” Parents are free to reach a custody agreement on their own, which the court will generally approve so long as it appears to be in the best interest of the child. There are several “best interest factors” that a court must consider when making custody decisions, although not all factors may apply to a particular case. One of the factors is “the stated wishes and concerns of the child, taking into consideration the child's cognitive ability and emotional maturity.”

So, while a child’s preference about custody may be taken into consideration, it is only one of a list of factors that the court must weigh when making a custody decision.

At What Age Can a Child Decide Who to Live With?

There is no age (short of adulthood) at which a child in Utah has total control over their living arrangements. However, the older and more mature a child is, the more likely that their wishes will factor into a custody decision.

A child who is over the age of 14 is likely to have their preferences given considerable weight by the court. The wishes of a child who is less than 10 are likely to be less of a factor, because they are typically based on less mature reasoning. However, these ages are not hard-and-fast rules; the weight a court will give to a child’s preference about which parent to live with depends on the facts of a case and the reasons for the child’s preference.

For instance, a 16 year old may prefer to live with one parent because that parent works long hours and doesn’t notice that the child is skipping school and smoking pot with friends. While the child’s age suggests they should have some input into their living situation, the maturity of their reasoning (and need for greater supervision) suggest otherwise.

On the other hand, a nine year old may express a preference to live with one parent because doing so will allow them to stay in their school with their familiar teacher and friends, and because that parent always helps them with their homework and makes sure there is enough food in the house. Despite that child’s younger age, a court could decide the child had good reasons to want to live with one parent.

Since Utah courts must weigh a number of “best interest” factors, some parents try to tip the scales in their favor by influencing the child’s preference. This often backfires on manipulative parents. If a parent has bribed a child to influence their preference, or coached them to lie about conditions in the home or the other parent’s home, it will reflect very badly on that parent.

Must Children Testify About Which Parent They Want to Live With?

Up until now, we’ve been talking about how much weight a court gives a child’s preferences about custody. But how does the court learn about those preferences?

As you can imagine, it would be very difficult, even traumatic, for most children to testify in a courtroom about which parent they want to live with, and why. Unless there are extenuating circumstances that compel it, children do not testify in court in Utah. When it is necessary to determine a child’s custodial preferences, there are almost always options that do not require the child to testify in court.

Courts may hear testimony from mental health professionals, private guardians ad litem, or custody evaluators regarding a child’s expressed preference about custody.

If you are a parent who is concerned about your child’s wishes regarding custody, the best thing you can do is continue to be an involved, caring parent who puts your child’s needs first. The court may consider your child’s preferences about custody, but remember that those preferences are only one factor out of many. The court’s priority is doing what is best for your child, which may or may not be the custody arrangement your child prefers.

If you have more questions about Utah child custody, please contact BartonWood to schedule a consultation.

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Categories: Child Custody