One of the most frequent questions I am asked by parents involved in custody disputes is: “when is my child old enough to decide to live with me?” The answer – that children under age 18 in Massachusetts do not get to make decisions around parenting plans – often comes as a surprise.
M.G.L. c. 208, sec. 28 provides:
Upon a judgment for divorce, the court may make such judgment as it considers expedient relative to the care, custody and maintenance of the minor children of the parties and may determine with which of the parents the children or any of them shall remain or may award their custody to some third person if it seems expedient or for the benefit of the children….Upon a complaint after a divorce, filed by either parent or by a next friend on behalf of the children after notice to both parents, the court may make a judgment modifying its earlier judgment as to the care and custody of the minor children of the parties provided that the court finds that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children.
Unlike the Massachusetts adoption law, which provides that a child over the age of 12 must give his or her consent to being adopted, and the Massachusetts guardianship law, which provides that a child 14 or older can object to the appointment of a guardian, M.G.L. c. 208, sec. 28 does not contain any provisions allowing for a child of any certain age to make decisions regarding which parent will have custody in a divorce situation. While a 16-year-old can get a driver’s license and is permitted to drop out of high school, that same 16-year-old does not have the authority to decide on which parent he wants to live with or what parenting plan he must follow. While a child can, in certain circumstances, be appointed a volunteer attorney under the program known as “ARC” (Attorneys Representing Children) to present his wishes to the Judge, the decision on custody still rests with the Judge for any child under the age of 18. And, the Judge making the decision as to custody does not meet or even speak to the child directly. While the adage that children of a certain age “vote with their feet” by walking away from a parent’s home is true, under the law, only upon reaching age 18 does a child of divorce have the right to make his own decisions regarding when and under what circumstances to spend time with a parent.
Perhaps it is time to take a fresh look at the law and give teenagers a stronger voice in parenting plans.
Until next time,
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