Twelve is the number in the statute. It is not the age a child gets to decide.
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The Short Answer
There is an age in the statute, and almost everybody misunderstands what it does.
Tennessee Code Annotated § 36-6-106(a)(13) makes “the reasonable preference of the child if twelve (12) years of age or older” one of the statutory best interest factors. At twelve, the court has to consider what the child wants. It does not have to do what the child wants, and the child does not get to choose.
The same provision says the court “may hear the preference of a younger child upon request.” It is discretionary, and it happens. The youngest we have seen a court hear from was eight years old.
The statute says the preference of older children should normally be given greater weight than that of younger children. A sixteen year old’s view carries more than a twelve year old’s.
How the Court Hears From a Child
Judges speak with children directly, and they take care to do it out of the presence of the parents.
Typically that is in chambers. On a video hearing, privately and away from both parents and the lawyers. Some judges will question a child with the lawyers present but not the parents, and instruct the lawyers that they may not tell the parents what the child said.
Where there is a guardian ad litem appointed, the guardian can communicate the child’s position to the court, and an in chambers conversation may still happen on top of that.
How Much It Counts
It is one factor and the court can give it whatever weight it thinks appropriate.
The practical version: if every other factor favors one parent and the only thing pointing the other way is the child’s stated preference, the preference probably will not change the outcome.
Where it does move a case is when a child confirms something serious. A preference that lines up with an allegation of abuse, from a child the court finds credible, carries real weight.
Coaching
Parents coach children, and the ones who do almost always believe they are being subtle.
Language that is not age appropriate. A child using adult vocabulary about the case, or repeating phrases nobody that age would produce. Incredible detail about certain events and no memory at all of others, in a pattern that tracks what would be useful.
Children are not good liars, and judges spend their careers evaluating whether witnesses are telling the truth. Most of them pick it up.
Where coaching is suspected, a guardian ad litem or a therapist may be brought in to sort it out. Even with that help it is difficult to establish definitively, which is one more reason judges rely on their own read of the child.
Your Attorney
Sam Jaber · Divorce & Family Law
Attorney Sam Jaber handles custody and parenting plans arising out of divorce, in Shelby County circuit and chancery court. He has practiced divorce and family law in Memphis for over a decade.
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William Young · Of Counsel · Juvenile Court
Attorney William Young handles custody in Shelby County Juvenile Court, where the parents were never married.
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Common Questions
There is no age at which a child chooses. Twelve is the age at which a court must consider the child's preference. Tennessee Code Annotated section 36-6-106(a)(13) makes the reasonable preference of a child twelve or older one of the statutory best interest factors, and the court weighs it alongside every other factor.
No. A fourteen year old is past the statutory threshold, so the court must consider the preference, and the statute says the preference of older children should normally be given greater weight than that of younger children. But the court decides, and the preference is weighed against every other factor.
Usually, and out of the presence of the parents. Typically in chambers, or on a video hearing privately away from both parents and the lawyers. Some judges will question a child with the lawyers present but not the parents, and instruct the lawyers not to tell the parents what the child said.
The guardian can communicate the child's position to the court, and an in chambers conversation with the judge may still happen in addition to that.
Yes, upon request, and it is discretionary. The statute says the court may hear the preference of a younger child upon request. The youngest we have seen a court hear from was eight years old.
As much as the court decides to give it. If every other factor favors one parent and the only thing pointing the other way is the child's stated preference, it probably will not change the outcome. Where it moves a case is when a child confirms something serious, such as a preference that lines up with an allegation of abuse.
It usually shows. Language that is not age appropriate, adult vocabulary about the case, or incredible detail about certain events and no memory of others in a pattern that tracks what would be useful. Children are not good liars and judges are practiced at evaluating credibility. Courts are inclined to punish a parent they believe coached a child.
They can help sort it out, and they are frequently brought in where it is suspected. Establishing it definitively is difficult even with that help, which is part of why judges rely heavily on their own read of the child.
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