Can Children Express Preference in North Carolina Custody Proceedings?

When parents are getting divorced or separating, the most challenging issues they face are usually related to physical and legal custody of their children—where the kids will live, how often each parent will see them, and how parents will make important decisions concerning their children.

Unfortunately, some parents who are in a custody battle overlook what the children themselves want, or—even worse—they try to manipulate or coerce a child into choosing sides. In North Carolina, judges may sometimes consider what the children want. But that doesn't necessarily mean they have to go along with those preferences.

The Role of Children's Preferences in North Carolina Custody Decisions

If the parents can't agree on custody and visitation (sometimes called "parenting time"), a judge will have to decide for them. In North Carolina, as in all states, the overriding principle in all custody disputes is that a custody and visitation plan must be in the child's best interests. (N.C. Gen. Stat. § 50-13.2(a) (2023).)

But how do judges decide what's best for a child? Unlike many other states, North Carolina's child custody laws don't spell out a long list of factors that judges must consider when they're making this determination. The law simply says that judges must consider "all relevant factors," including any history of domestic violence between the parents.

North Carolina courts have long held that judges may consider a child's preferences when they're deciding which of two equally fit parents should have custody.

Do Children Have To Be a Certain Age to Express Custody Preferences?

Children don't have to be a certain age before judges in North Carolina may consider their custody preferences. According to the North Carolina Supreme Court, judges may consider the wishes of a child who has reached "the age of discretion"—which means when a child has sufficient maturity and judgment to form an intelligent view on the matter. (Hinkle v. Hinkle, 266 N.C. 189 (N.C. 1966).)

As a practical matter, the older children are, the more weight judges are likely to give their opinion about which parent they want to stay with most of the time, and how much time they want to spend with the other parent. But that doesn't necessarily mean that even older teenagers will always get their way on the custody issue.

When Will Judges Follow Children's Custody Preferences?

Although children may be entitled to have their wishes heard in custody disputes (as long as they're mature enough to express reasonable opinions), North Carolina courts have made it clear that judges are not required to follow those preferences. In addition to examining the child's reasons for the stated preference, a judge will consider all of the relevant factors in the case before deciding what would be best for the child. For instance:

• If a child simply wants to live with the parent who's more lenient or gives more lavish gifts, the judge probably won't give that child's preference much weight. But if a child expresses a desire to live with the parent who's more loving or engaged in parenting (for instance, by regularly helping with homework or accompanying the child to sports and other activities), the judge is much more likely to take that child's wishes into consideration.
• If a judge believes that a child has been manipulated or pressued to choose one parent over the other, the judge will probably discount the child's stated preference. (Griffin v. Griffin, 344 S.E.2d 828 (N.C. Ct. App. 1986).)
• The judge may consider whether the child has tried out living with each parent before coming to a strong preference for one of them. For example, one judge properly gave "great weight" to the preferences of two siblings (ages 10 and 14) who had lived with their father for a few months, then chose to live with their mother—and continued to want to stay with her. (Almond v. Almond, 257 S.E.2d 450 (N.C. Ct. App. 1979).)

In general, appellate courts give judges a lot of leeway to decide what custody arrangements would be in the children's best interests. In one case where a 16-year-old boy wanted to live with his father, the judge still awarded custody to the mother. The appellate court upheld that ruling, even though the judge's order didn't include any specific findings about the boy's preferences. (Brooks v. Brooks, 184 S.E.2d 417 (N.C. Ct. App. 1971).)

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

Although there are exceptions, North Carolina law doesn't normally require children to testify regarding their custody preferences. Judges want to spare children the anxiety of sitting in a witness chair in an intimidating courtroom and having to express a choice in front of their parents.

According to an FAQ on child custody from the North Carolina Judicial Branch, many judges prefer to have children wait outside the courtroom rather than observing a trial. And they'll usually speak with children in their judicial chambers, without the parents present. Judges will also typically keep questions to a minimum to make sure the child doesn't feel harassed or embarrassed.

It's not unusual for a court to have trained professionals (typically psychologists or social workers) conduct a custody/visitation evaluation. The evaluator's report may include information about the child's preferences, along with the expert's observations and opinions about what would be in the child's best interests.

In particularly contentious custody cases, children might need to be represented by their own attorney. The court may also appoint a guardian ad litem (GAL) or "child representative" to represent the children's interests.

When Can a Child Refuse Visitation in North Carolina?

As in most other states, children in North Carolina aren't allowed to refuse to visit a parent under an existing visitation order until they're legal adults (when they turn 18 or otherwise become legally emancipated).

If a child is refusing visitation, the parent with primary physical custody (the "custodial parent") has the responsibility to get the child to cooperate. A custodial parent may not shift the blame to the child for failing to obey a court's order regarding visitation.

Of course, as any parent knows, as children get older it can be difficult to make them do something they absolutely refuse to do. Judges recognize that existing parenting schedules might become less appropriate as children age or the parents' circumstances change. That's why the law allows the possibility of seeking a change in custody or visitation.

Changing a Child Custody Order

If your current co-parenting arrangement isn't working anymore, you and the other parent could agree on a change, as long as the judge approves your agreement and incorporates it into a new court order.

Otherwise, you can file a "motion" (written legal request) with the court, seeking a custody or visitation modification. In order to succeed, you must show a change of circumstances that would justify the modification. And, as with any aspect of child custody, the judge must find that the requested change is in the child's best interests. (N.C. Gen. Stat. § 50-13.7(a) (2023).)

Sometimes, the fact that children have gotten older and have different preferences might be enough of a change in circumstances to warrant a custody modification. In one North Carolina case, for instance, the judge initially awarded custody of an older brother (who was then nine years old) to his father, in part because the boy wanted to live with his dad. But at the time, the judge awarded custody of his five-year-old brother to the mother. When the younger boy turned nine, he expressed a strong desire to be reunited with his older brother. The mother wouldn't agree, so the father filed a modification motion seeking custody of the younger boy. The judge found that the circumstances had changed—because the child was now older and wanted to live with his brother—and that it would be in both children's best interests for the two of them to live with their father. (Matter of Custody of Peale, 290 S.E.2d 664 (N.C. 1982).)

How Can Mediation Help in North Carolina Custody Disputes?

You may avoid lengthy and expensive court battles over custody disputes if you and the other parent can reach an agreement on the issue. When you're having trouble agreeing on your own, custody mediation may be a way to work through your obstacles. In fact, under most circumstances, North Carolina law requires the court to order mediation to assist parents in formulating, modifying, or implementing a custody/visitation plan.

If you've worked out an agreement, ordinarily the mediator will prepare a written memorandum which reflects the terms of the settlement.