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On Behalf of | Jul 3, 2020 | Child Custody

When can a child voice a preference for where they live after a Florida divorce?

When a Florida court establishes or modifies child custody arrangements in a parenting plan involving parental responsibility, time-sharing schedules and the child’s residential arrangements, Florida law is clear. The overarching and prime concern of the law is the child’s best interest.

Child’s best interest and welfare are paramount

The custody statute directs that the judge evaluate any and all factors “affecting the welfare and interests of the particular minor child and the circumstances of that family,” including those included in a specific list. On that list is the “reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.”

Florida courts have clarified that a judge must consider the child’s desire, but that it is normally only one factor in custody and visitation decisions. The child’s preference does not trump other factors if they significantly impact the child’s welfare. For example, there may be circumstances of which the child is not aware that affect their wellbeing or one parent may have inappropriately pressured the child to reject the other parent.

Each child’s ability to express a reasoned preference is unique

Preliminarily, to consider a child’s preference, the judge must establish that the child have satisfactory maturity to understand and express a reasoned preference. Age is likely a factor in this determination, but the statute does not provide a minimum age for this ability, leaving the court discretion to consider the preference of a child of any age if they are able to meet the standard.

Child’s preference to change a custody arrangement

The child’s preference as to which parent they want to live with or spend more time with – or not have contact with – also may come up when one parent asks the court to modify the parenting plan or time-sharing arrangement. A judge may modify custody only on a showing of a “substantial, material, and unanticipated change in circumstances” – and it must still be in the child’s best interests.

Again, the child’s preference is one factor the law requires the judge to weigh in a request to modify custody.

The Fifth District Court of Appeal of Florida in Greene v. Kelly looked at a case where the mother got custody of the daughter in the divorce when the girl was three years old and too young to express a preference for where she lived. The judge observed that now that the child was 13, she had the benefit of having lived with her mother for a decade, so her preference was relevant both to deciding on the modification request as well as to whether her new ability to make a mature choice constituted a changed circumstance in itself justifying that change.

The court significantly noted that a child’s preference expressed in a modification proceeding was entitled to greater weight it would have been at the time of divorce because an initial custody decision has built-in uncertainty as to how the arrangement will go. At the later modification, their preference is informed by the years lived in the initial arrangement.

An experienced Florida family lawyer can answer questions about the potential weight of a child’s custody preference in a divorce or later request for parenting-time modification.



The LAW OFFICES OF FORREST & Forrest, PLLC represents individuals in Fort Lauderdale in high-asset divorce matters. Daniel Forrest is board-certified family lawyer and mediator serving the South Florida area.

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