Can Children Express Preference in North Carolina Custody Proceedings?

A look at how a child’s preference affects custody in North Carolina.

Many divorcing parents wonder whether their children may express opinions about custody arrangements. In most states, judges are allowed to consider custodial preferences, but the overriding goal in family law is to create a custody schedule that serves the child's best interests.

This article provides an overview of the impact of a child’s preference on custody proceedings in North Carolina. If you have questions after reading this article, please contact a local family law attorney for advice.

Child Custody Basics in North Carolina

There are several ways to come up with a parenting plan. Many parents are able to work together to reach their own custody agreements. When parents can't agree, they usually have to head to court and ask a judge to decide.

A judge may evaluate any factor he or she views as relevant to a child’s best interests. However, the following circumstances are examined in most custody cases:

  • each parent’s wishes regarding custody
  • each parent’s motivations for seeking custody
  • each parent’s willingness to encourage the child to maintain a strong relationship with the other parent
  • the child’s age, sex, physical and mental health
  • the child’s adjustment to home, school and community
  • the child’s involvement in a religious faith
  • each parent’s methods of discipline
  • each parent’s adultery or cohabitation relationship, if the relationship adversely affected the child
  • each parent’s history of alcohol or substance abuse, if any
  • each parent’s history of domestic violence, if any
  • each parent’s physical, mental and financial fitness
  • each parent’s age as it applies to child rearing
  • each parent’s work schedule and child-care arrangements, and
  • the child’s preference, if the child has reached age of discretion.

In addition, a court may evaluate the type of community in which each parent resides. A parent’s location in a high-crime area can be a negative factor in custody. Also, age is generally only a major factor in custody cases where there is a very large age discrepancy. A 30-something mother seeking custody of her children was awarded custody partly because she was 20 years younger than the children’s father. For more information about custody decisions in North Carolina, see Child Custody in North Carolina: The Best Interests of the Child.

When Will the Court Consider a Child’s Preference?

A child’s preference is generally considered when he or she has reached the age of discretion – approximately 10 years old. North Carolina defines “the age of discretion” as the point when a child can form an intelligent and rational preference regarding custody. Some children may reach this rational age sooner or later than others.

For example, in one North Carolina case, a 9 year-old’s custodial preference was disregarded. The court ignored the boy’s custody wishes because he made conflicting statements about custody and wasn’t able to form a rational preference.

In another case, a 10 year-old and 14 year-old were both considered mature enough to express a rational preference. Both children wished to live with their mother. The court placed significant weight on the children’s preference in light of their ages, maturity and judgment skills. Although the children’s preference didn’t control the outcome of the custody case, it did impact the judge’s decision.

Finally, in a different case the court refused to grant a 16 year-old’s desire to live with his father. Although the boy had reached the age of discretion, his wishes were just one of several factors examined by the court in deciding custody. Although a child’s preference will be considered when he or she reaches the age of discretion, it won’t control a custody decision, especially if the preference is based on immature reasons, such as one parent being easygoing with curfew, for example. A child’s custodial wishes tend to play the biggest role in cases where both adults are stable and good parents. In those types of cases, a child’s preference serves as a tiebreaker.

Will My Child Have to Testify in Open Court?

A child can, but doesn’t have to, testify in open court. Judges will assess a child’s ability to take the witness stand on an individual basis. Many children can be frightened or overwhelmed by a courtroom experience. In those cases, a child may have his or her voice heard through another appointed adult.

Sometimes, a judge will interview a child in his or her chambers outside the courtroom. Parents are typically left out of an in-chambers interview so that a child can speak freely. Attorneys for each parent may attend, and a court reporter will be present to record the child’s testimony.

In other instances, a judge may appoint a guardian ad litem or licensed child therapist to meet with the child. These appointed individuals often meet with parents as well. A guardian ad litem will find out a child’s custody desires and physical and emotional needs and represent those to the court. A guardian ad litem represents a child, not the parents, at any custody proceeding.

If you have additional questions about the effects of children’s preferences on custody proceedings in North Carolina, contact a local family law attorney for advice.

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