CHILD PREFERENCE IN TENNESSEE CUSTODY CASES

How old does my child have to be to choose which parent he or she wants to live with? In Tennessee, there is no set age at which a child may absolutely choose which parent that they will get to live with.

How old does my child have to be to choose what parent he or she wants to live with? In Tennessee, there is no set age at which a child may absolutely choose which parent that they will get to live with. However, the judge may be able to consider the child’s preference when making a custody determination or changing custody.

What’s the rule?

Tennessee Code Annotated § 36-6-106 sets out the factors that a judge must consider when making a custody determination. These are often called the “best interest factors” because ultimately the judge has to make custody and parenting time decisions that are in the child’s best interest.

Section 13 of this statute requires the court to consider “the reasonable preference of the child if twelve (12) years of age or older.” It goes on to state that “the court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children.” It will be up to the judge to make his or her own decision regarding whether to even hear testimony regarding the preference of a child under the age of twelve (12) and what weight to give that preference in making the best interest determination.

So, what does that mean for us?

Even if the child has a preference, it may not be the deciding factor. There are many other factors in the statute that the court must consider, and the child’s preference is only one of them. The child’s wishes alone are not a basis for the Judge to make a custody decision or to change custody. The judge will weigh the child’s preference along with the other factors in the statute and the child’s preference does not outweigh the other factors that the judge has to consider when making that best interest determination.

Does my child have to testify?

Yes. In order to even consider the preference of a child over the age of twelve (12), the judge has to first find that the child’s preference is reasonable. The judge will want to be sure that the child has not been coached by one parent or the other, and also that the child is not basing his or her preference on which parent he or she thinks may be more lenient or more fun, or more likely to give or provide gifts.

Whether the child is over or under twelve (12) years old, the child would have to testify in court regarding his or her preference. Neither the parents nor any other person would be able to testify about the child’s preference so that testimony would have to come directly from the child.

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