Can a young child decided?

I have two kids of the ages of 3 and 5. My 5 year old daughter is very smart for her age and she doesn't want to live w/ her dad. This divorce has been going on for almost a year now. She's always telling me how she wants to be w/ me. Can a judge talk to her even though she's so young. She doesn't mind visiting her dad, but doesn't want to live w/ him. It would be different if she couldn't make up her mind and was going back and forth about living w/ him and me, but she wants to be w/ me and has stuck w/ that from when the divorce first started. Can a judge take this into consideration even though she is only 5 soon to be 6? Thanks

I am a law school graduate. What I offer is mere information, not to be construed as forming an attorney client relationship.

Without knowing your state, here is what I can tell you. I pasted the information from the freeadvice.com homepage under child custody:

WHAT FACTORS GO INTO DETERMINING CUSTODY AND VISITATION?
The primary consideration is, "What is in the best interest of the child?" The focus is from the viewpoint of the child as opposed to the wants and desires of one parent or the other.

Some states have established a general rule that it is in the best interest of a child to have continuing and frequent contact with both parents and the parent who is most supportive of this concept becomes the custodial parent. If one parent attempts to undermine the relationship between the child and the other parent, this factor could be considered in providing custody or additional visitation to the other parent.

The best interest of a child is determined on a case-by-case basis upon consideration of all relevant facts concerning the circumstances of both parents.

DO THE WISHES OF A CHILD HAVE ANY INFLUENCE IN CUSTODY DECISIONS?
Some states (NOT ALL) allow children of sufficient maturity to have an impact upon the determination of custody and visitation by considering their desire to reside with one parent or the other. Judges will listen closely to the child's stated preference and his or her reasons. The child does not have the final say and it will be the judge's decision just how much consideration is to be given to the child's wishes, depending on age, maturity, and the quality of the reasons. The overriding question will always be: what is in the child's best interest?

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by shamay:
I have two kids of the ages of 3 and 5. My 5 year old daughter is very smart for her age and she doesn't want to live w/ her dad<HR></BLOCKQUOTE>

It is very rare for a 5 year olds view to be taken into account by a court. There are many reasons but one of them is that the child can easily be influenced by the CP. Fight the custody case on your merits and facts.

Your 5 year old child may be very smart, but a parent should never put the child in the middle. Later on down the road it could case problems with the other parent. You need to decide on the best interest of your children, and go on that.