The legal answer to this question is, as usual, “It depends.” It depends on the subject matter involved, the age and maturity level of the child and the reasoning behind his or her decision, among other factors. A 5 year old may be able to decide what flavor of ice cream she wants. A 5 year old should not decide for herself whether it’s safe to cross a busy intersection.

As a family law attorney, people usually ask me this question in the context of “custody” decisions. They want to know if their child or children can decide whether to spend time with the other parent or how much time to spend with the other parent. My answer is always the same – children cannot make their own decisions. About custody, at least. Legally they can’t make their own decisions and in my opinion, morally they should not make their own decisions.

Legally, the court will consider children’s preferences as one of a list of factors in deciding custody matters. Judges consider a child’s age, maturity and reasoning in determining how much weight to give to his or her preference. An 8 year old who wants to spend more time with one parent because he or she doesn’t enforce bedtime and lets the child eat ice cream for breakfast will be considered differently than a 13 year old who wants to spend more time with one parent because he or she doesn’t yell as much and helps the child with homework. Children can legally make their own decisions at age 18 and not before.

Morally, I believe it is our job as parents to make certain decisions for our children. That’s one of the reasons I like to discuss “parenting arrangements” instead of “custody.” Those decisions include where and when children will spend their time. I encourage my clients to look at parenting arrangements from their children’s perspective. Why would any parent want his or her child to make the decision about how, when and where he or she spends time with his or her parents? I can think of very few things more distressing to a child than to be expected to make those decisions about parenting arrangements.

If you would like to discuss this or any other family law issue, please contact me.