Can Children Express Preference in South Carolina Custody Proceedings?

When two parents decide to go their separate ways, they frequently disagree about who should have custody of their children. This means they often wind up in court, where they each have an opportunity to make their opinion known and to argue their case before a judge who then makes an initial custody determination about how much time the children will spend with each parent.

But what about what the children want? How much does their opinion matter, if at all? This article will examine the impact of a child’s preference in South Carolina custody proceedings.

Overview of Custody Decisions in South Carolina

There are two kinds of custody in South Carolina: legal and physical. Legal custody refers to a parent’s right to help make milestone decisions about the child’s life, such as the child’s medical, educational, cultural, and religious upbringing. Physical custody, on the other hand, refers to where the child will live, which parent will provide what kind of care for the child, and how much time each parent will spend with the child.

Legal and physical custody may be joint or sole. If custody is joint, the parents will share time with the child and make decisions together. If custody is sole, only one parent will make the decisions and will spend most, or sometimes all, of the time with the child.

To make an initial custody determination, South Carolina judges have to examine evidence about a list of factors which collectively determine a child’s best interests. These factors include:

  • the temperament and developmental needs of the child
  • the capacity and disposition of each parent to understand and meet the child’s needs
  • the preferences of each child
  • each parent’s wishes as to custody
  • the past and current interaction and relationship of the child with each parent, siblings, grandparents, and any other person who may affect the child’s best interests
  • the actions of each parent to encourage the continuing parent-child relationship between the child and the other parent
  • the manipulation or coercive behavior of either parent in an effort to involve the child in the parents’ dispute
  • any effort by one parent to disparage the other parent in front of the child
  • the ability of each parent to be actively involved in the life of the child
  • the child’s adjustment to home, school, and community
  • the stability of the child’s existing and proposed residences
  • the mental and physical health of everyone involved, except that a parent’s disability cannot be determinative of custody
  • the child’s cultural and spiritual background
  • whether the child has been abused or neglected
  • whether one parent has perpetrated domestic violence or child abuse, and the effect on the child of the actions of any abuser
  • whether one parent has relocated more than one hundred miles from the child’s primary residence in the past year, unless the parent relocated for safety reasons, and
  • any other factors the court deems relevant.

The list of factors the court must consider explicitly includes the custodial preference of each child, but the South Carolina legislature took the extra step of passing an additional law which specifies that in determining the best interests of the child, a judge must consider the child’s reasonable preference depending upon the child’s age, experience, maturity, judgment, and ability to express a preference.

For more information about custody decisions and family law matters, the  South Carolina Judicial Department  maintains a family law website that contains forms and additional research.

When Will the Court Consider a Child’s Preference?

South Carolina family court judges are obligated to consider a child’s reasonable preference as one of the best interest factors. The weight that a judge will place on a child’s preference depends on the child’s age, experience, maturity, judgment, and ability to articulate an opinion. However, a child’s preference is not to be given weight if it’s based on the permissive attitude of a preferred parent, or if the court finds that either parent has bribed the child with gifts, exerted undue pressure, or imposed unfair discipline in an effort to get the child to say what the parent wants.

There is no hard or fast rule to indicate what age a child must be for the child’s opinion to be considered. Whether the judge decides to consider this evidence depends on the unique facts of each case and the attributes of each individual child. Looking at past court cases offers insight into the kinds of fact patterns that will cause a judge to disregard, or to consider, a child’s custodial preference.

For example, in one case, the father provided a more stable home, whereas the mother lost her job due to absenteeism and was known for having a poor temperament. Yet their two six-year-olds and their ten-year-old expressed a preference to live with their mother.  Brown v. Brown, 606 S.E.2d 785, 789 (S.C. Ct. App. 2004). It was unclear why the six-year-olds wanted to live with their mother, and the court found they were too young to offer a reasonable preference. The ten-year-old’s basis for wanting to live with her mother was a desire to stay in the neighborhood she grew up in so she could be with her friends. The court found that the ten-year-old’s preference was not entitled to great weight in the overall best interest analysis.

By contrast, in another case, a sixteen-year-old boy testified that he loved his adoptive father and preferred to live with him instead of with his biological mother. The court noted that the boy was intelligent and mature, and although his custodial preference would not, by itself, determine the outcome of the proceedings, it was entitled to great weight.  Guinan v. Guinan, 176 S.E.2d 173, 174 (S.C. 1970).

Do Children Have to Testify About Their Custodial Preferences in Court?

Generally, children don’t have to testify about which parent they prefer in open court. Judges have a great deal of latitude in managing the testimony of children.

South Carolina’s Rules of Family Court provide that in all matters relating to children, including custody proceedings, the family court judge has the discretion to decide whether to talk to the children individually or together, and in private. Judges commonly talk with children in their personal judicial chambers.

The court may also appoint a guardian ad litem, who is an advocate for the children and gathers facts about their lives and best interests. The guardian can testify about the children’s preferences instead of having the children appear to speak for themselves.

If a judges does choose to speak directly to the children, the court may allow the guardian to be present during the interview, and may also, but does not have to, permit the parents’ attorneys to be present as well.

Contested custody cases—and indeed, the entire judicial process—can be exceptionally difficult for non-lawyers to handle on their own. If you and your former spouse or partner disagree about custody,  contact an experienced South Carolina family law attorney for assistance with the process.

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