Another prominent legal myth is that a 16 years can decide with which parent they are going to live. The typical scenario is that a couple divorce when their children are younger and the custody is awarded to the mother. Years pass and the child (usually boys) reach their teenage years. Suddenly, weekends at Dad’s looks more fun for the teen: more liberty, less strict. Dad and teen decide its a good idea to change custody. A 16 year old can decide their residence can’t they?
This is just not so. The child’s wishes are a mere consideration in a myriad of factors for custody but are not any where near decisive. How many sixteen years would choose to stay with the fun non-custodial parent? Or how many would choose to stay with the parent which doesn’t discipline them during their visitation periods? Of course, this would be unwise policy for the courts.
Before a court can change a custody order, first, there must be evidence that satisfies what is called the McLendon standard. The Ex parte McLendon standard states that a “parent seeking a change in custody must establish that the change would materially promote the interests and welfare of the child and that the benefits of the change in custody would more than offset the inherently disruptive effect caused by uprooting the child.” After a custody order is entered, a presumption arises in favor of the non-custodial parent; the playing field is no longer level.
A child’s preference doesn’t overcome that presumption. As the Alabama Court of Civil Appeals stated in one case: “The child merely prefers to live with her father at this time. Under Alabama law, this is simply not enough to justify a change of custody.” Glover v. Singleton, 598 So. 2d 995, 996 (Ala. Civ. App. 1992)