Angel Kane Attorney

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AT WHAT AGE CAN A CHILD TELL THE COURT WHO THEY WANT TO LIVE WITH?

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I receive at least one call a week asking me this very question.

There seems to be a belief that in Wilson County, Smith County and Macon County, your child can speak to the Judge at age 12, tell the Judge who they want to live with and the Judge will do as the child asks.

In my experience, that is NOT the case.

The law says at age 12 a child may state their preference. However, this is one of many factors the Judge may consider when deciding custody. The law sets out the factors the Judge takes into consideration when determining custody and this preference alone will not make or break the case.

If you are a resident of Lebanon, Mt. Juliet or Watertown, your local Judges will often speak to the children even if they are younger than 12.

Most young children are allowed to testify in the Judge’s Chamber with only the Judge, and the two attorneys present. The attorneys and the Judge have the right to ask the child questions. And often, a question someone will ask is - what did your Mom or Dad tell you about what is going on today.

Don’t coach your children about what to say to the Judge. Believe me, it is obvious within the first 10 minutes which parent has told the child about the divorce and which parent has coached the child about what to say about the other parent.  

My advice, is to say nothing to the children about your on-going case and don’t ask them who they want to live with.

I know this is very hard to do. But your children should not be put in that position to pick between their parents in a divorce.

That’s not to say they won’t be asked their preference in chambers. But pressuring the child beforehand or prepping them for Court – never goes your way.   

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ANGEL KANE has been practicing since 1995. Angel was a member of the University of Memphis Law Review and served as a judicial law clerk while in law school. A graduate of the University of Memphis Law School, Angel has practiced in Memphis and Lebanon, Tennessee.

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