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Child's Election

Could the Child Choose Which Parent They Live With?

If child custody is contested and parents cannot agree about a time sharing schedule, the court will order one based upon the best interests of the child. The court bases this determination upon a number of factors meant to take into consideration “the wellness and interests of the particular minor child and the circumstances of that family.” One of these factors is the reasonable preference of the child. However, the reasonable preference of the child will only be considered “if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.” Fla. Stat. § 61.13. Unlike other states, the child’s preference will be considered, but is not controlling. Walfish v. Walfish, 383 So. 2d 274 (Fla. Dist. Ct. App. 3d Dist. 1980).

Age Requirement

In an Orlando or Tampa, Florida case, there is not a definite age that a child is considered capable to make an intelligent decision about their time sharing preference. In Florida case law, the capable age to  make an intelligent decision about their time sharing preference has varied between 11 and 15 years old. Taylor v. Schilt, 292 So. 2d 47 (Fla. Dist. Ct. App. 2d Dist. 1974); Udell v. Udell, 151 So. 2d 863 (Fla. Dist. Ct. App. 2d Dist. 1963).

 Practice Pointer - Undue Influence

The court will consider whether the child is actually making an intelligent decision, merely rebelling against one parent, or has been unduly influenced to express a preference in one parent’s favor. Often, parents will coach their children what to say or lavish them with gifts in return for the child preferring them. Alternatively, the parent may slander the opposing parent to the child to persuade them that the parent is unstable and thus, should not have majority time sharing. Jones v. Oakes, 71 So. 2d 252 (Fla. 1954).

How Does a Child Express Their Preference?

In Tampa, Orlando and throughout Florida, a child cannot be forced to testify in court unless their testimony is absolutely necessary. Outside of testimony, there are several other ways that the child may express their preference. First, a judge may speak with a child concerning their preference. The judge will do so in the judge’s chambers in order to protect the child’s privacy and ensure that he or she feels free to be honest and forthcoming with the judge. Secondly, the child may speak with a guardian ad litem about their preference, who can then testify in court. Fla. Stat. § 61.403. Lastly, the court may appoint a mental health care to interview the child and then testify about the child’s preference. Berlin v. Berlin, 386 So. 2d 577 (Fla. Dist. Ct. App. 3d Dist. 1980).



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