Sufficient Age and Capacity: When Children Have a Say in Custody

Who Gets to Decide?

Sufficient Age and Capacity: When Children Have a Say in Custody

In divorce and separation cases, parents often disagree on issues of custody and parenting time. Typically, both parents have their own idea of what is best for the child and may not stop to consider each other’s—or even the child’s—view on the matter. Some children have preferences for which parent they want to live with, and, in some cases, the court may consider these preferences when deciding on custody. But the court is not required to consider the child’s preference for custody in every case. Rather, it is a factor that may be considered when appropriate.

When Does a Child’s Preference Matter?

In most cases, the court will only consider the opinion of a child who is of sufficient age and capacity. Generally speaking, this refers to the level of maturity of the child. Contrary to what many parents think, there is no set age at which a child’s preference for custody will be considered. As children mature at different rates and have different cognitive capacities, their preferences will be considered on a case by case basis. Many attorneys, however, ascribe 14 as the age when a child is presumed to have the capacity to hold a mature opinion on the matter. But the court may consider the preferences of a child younger than 14 if that child is deemed mature enough or may disregard the preference of an older teen under certain circumstances.

Determining Capacity

In determining whether a child has sufficient age and capacity, the judge may interview the child in his or her chambers. But the court is required to consider many other factors before deciding on custody, and the child’s preference—if it is considered—is just one. Other factors include who the child’s primary caretaker has been, which parent can best meet the child’s needs and the custody preferences of the parents themselves.

Custody is a complex issue that is often contested in divorce and separation cases. There are many factors affecting custody. Luckily, there may be things you can do to increase your chance of getting a favorable custody arrangement and making sure your child gets to live with his or her parent of choice. If you are seeking custody, work with an experienced New Jersey child custody attorney so you know you are doing all you can to get the outcome you want.

Co-parenting a child is stressful and full of challenges, but the knowledgeable attorneys at the Williams Law Group, LLC have the experience needed to defend your rights as a parent and protect your child’s best interests. Located in Short Hills, New Jersey, Williams Law Group, LLC provides compassionate and dedicated legal services to Union, Bergen, Essex, Hudson, Morris, Monmouth, and Middlesex counties, and the surrounding areas. Our knowledgeable attorneys handle divorce and family law, child custody, and child abuse/neglect cases. Call our office at (908) 810-1083, email us at, or contact us through our confidential online form to schedule a consultation and ultimately get you connected with an experienced New Jersey divorce and child custody attorney.


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