At What Age Can A Child Choose With Which Parent to Live?

by | Aug 24, 2017

In short, at no age does a child in Maryland get to choose to live with a parent.

As long as a child is under the age of 18, a child does not have a legal right to decide where or with whom he or she will live.

A few laws give children rights at certain ages, but these do not include choosing where or with which parent a child will live.

As of age 16, a child who is the subject of a custody order can file his/her own petition to request a change in custody.  Family Law Article §9-103 permits this and states:

§ 9-103. Petition by child to change custody 

(a) Petition by child. — A child who is 16 years old or older and who is subject to a custody order or decree may file a petition to change custody.

(b) Guardian or next friend not required. — A petitioner under this section may file the proceeding in the petitioner’s own name and need not proceed by guardian or next friend.

(c) Hearing required; amendment of custody order or decree. — Notwithstanding any other provision of this article, if a petitioner under this section petitions a court to amend a custody order or decree, the court:

   (1) shall hold a hearing; and

   (2) may amend the order or decree and place the child in the custody of the parent designated by the child.

As of age 14, if a guardian of the child is sought, the child can designate a qualified guardian.  Estates & Trusts Article §13-702 permits this and states in part:

§ 13-702. Court appointment of guardian of a minor or representative of minor crime victim. 

(a) General rule. —

   (1) If neither parent is serving as guardian of the person and no testamentary appointment has been made, on petition by any person interested in the welfare of the minor, and after notice and hearing, the court may appoint a guardian of the person of an unmarried minor.

   (2) If the minor has attained his 14th birthday, and if the person otherwise is qualified, the court shall appoint a person designated by the minor, unless the decision is not in the best interests of the minor.

   (3) This section may not be construed to require court appointment of a guardian of the person of a minor if there is no good reason, such as a dispute, for a court appointment.

Instead of asking at what age a child can choose for him- or herself, the better question is how to give a child the opportunity to be heard.  

There are many avenues for giving a child a voice in the outcome.  For example, in contested custody litigation, the court can appoint a Best Interest Attorney or Child Advocate Attorney.  Best Interest and Child Advocate Attorneys are different roles, both of which involve representing the child in the litigation and making the child’s preference known and part of the record.

In settlement, the parents can enlist the services of a Child Specialist, which is a role often used in the Collaborative Process, but can be incorporated into other settlement processes, such as negotiations and mediation.  A Child Specialist is a neutral mental health professional who meets with the child and provides the Specialist’s observations of the child and child’s preference (if any) for consideration when preparing a parenting agreement.  In addition, some mental health mediators will meet with the child(ren) as part of the mediation process and provide feedback to the parents for consideration, again, when preparing a parenting agreement.

In the end, it is not about age or choice, but hearing from a child about his or her thoughts, feelings, and wishes when parents consider what kind of living arrangement and schedule is in the child’s best interests.

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law. You can follow her on Linked InFacebook, and and subscribe to her Newsletter for discussion, news, and developments in Maryland family law.