Does Your Child Get a Vote? How Florida Judges Weigh a Child’s Preference in Time-Sharing

Sooner or later, many separating parents hear some version of the same question from their child: “Can I just live with you?” It is natural to wonder how much that wish counts. You may have heard that once a child turns 12 or 14, the child gets to decide. In Florida, that is a myth. No birthday hands a child that decision, but a child’s voice is not ignored either.

A Preference Is One Factor, Not a Verdict

Section 61.13(3), Florida Statutes, lists 20 best interest factors a judge evaluates in time-sharing cases, and only one addresses what the child wants. Under subsection (3)(i), the court considers “the reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.”

Notice the qualifiers. The preference has to be reasonable, and the child has to be mature enough to form one. Florida law also begins from a rebuttable presumption that equal time-sharing is in a child’s best interests under section 61.13(2)(c)1. A child’s wish alone may not move a court off that starting point.

Why the Reasons Matter More Than the Request

Two children can say the same sentence and have it carry very different weight. What often separates them is the reasoning behind the preference. How might a court view these?

• A teenager who wants to stay near the school, friends, and activities that have anchored daily life for years
• A child who prefers the household with fewer rules, later bedtimes, or more screen time
• A child who repeats adult phrases about the other parent or the court case
• A child who describes steady routines, homework help, and emotional support in one home

That third example deserves a closer look. Section 61.13(3)(r) directs courts to consider whether each parent protects the child from the litigation, including by not discussing the case with the child and not disparaging the other parent. A rehearsed-sounding preference can reflect on the parent who encouraged it. Put simply, pressuring a child to “choose” can work against the very outcome a parent is hoping for.

How a Child’s Voice Actually Reaches the Judge

Parents are often surprised to learn that children rarely take the witness stand in these cases. Florida’s family court rules generally require a judge’s permission before a child can be called to testify. More often, a judge may speak with the child privately, appoint a guardian ad litem under section 61.401, or order a social investigation under section 61.20. Each approach lets the child be heard without being placed between two parents in open court.

Preferences also evolve, and a wish voiced at ten may look very different at fifteen. Changing an existing parenting plan, though, generally requires a substantial and material change in circumstances, and a shift in a child’s wishes may or may not meet that standard by itself.

Talk It Through With Our Team Before the Question Comes Up Again

When a child says they want to live with one parent, how the adults respond can shape a case in ways that are hard to undo. We help parents understand how Florida courts weigh a child’s preference alongside every other best interest factor. If this question is already surfacing in your home, our Orlando time-sharing attorneys at Anderson & Ferrin would be glad to sit down with you. Call us at 407-412-7041 or send us a message online to schedule a time to talk.

Source:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.13.html