When Can A Child Choose Their Custodial Parent in Florida?

Read the attorney bio for Michael M. Shemkus, Esq. here.

A common misconception of parents going through a custody battle is believing that their child has a say in the matter. The (un)fortunate truth is, they don’t—or at least, not in the way that most parents would think.

When a trial court is asked to decide on a parenting plan, they have to set forth a time-sharing schedule which tells each parent on which days their child will be in their custody versus the other parent’s custody. Time-sharing schedules take many forms; some might involve one week with mother and one week with father; others might involve time with mother on Mondays and Tuesdays, time with father on Wednesdays and Thursdays, and then alternating the weekends; and still others might place virtually all of the time with one parent during the school year with the summers reserved for the other parent. There are no “one-size-fits-all” time-sharing schedules—every family will start with a blank canvas.

In arriving at a time-sharing schedule, the trial court must consider Florida’s “best interest” factors. Pursuant to subsection 61.13(3), Florida Statutes (2022), there are twenty enumerated factors a court must consider when determining a time-sharing schedule. Among those twenty factors, only one concerns the child’s wishes:

• (i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

Moreover, our courts are instructed that no one factor is entitled to any greater weight than any other factor. That means that even if a child is deemed to be of sufficient intelligence, understanding, and experience in expressing a preference, that factor is still only one of twenty factors to be considered.

So how does a court determine when a child is of sufficient intelligence, understanding, and experience to express a preference worth considering? There is no bright line rule or age—it lies within the individual discretion of the particular judge. Generally speaking, the older and more intellectually mature the child is, the greater the chance the judge will consider the child’s preference. But remember, just because a judge finds a child to be of sufficient intelligence, understanding, and experience to consider that child’s preference, does not mean that the judge must grant that preference. The child’s preference still remains only one of twenty different factors the court must consider.