Can Children Express Preference in North Carolina Custody Proceedings?

A look at whether courts can consider a child's preference in North Carolina custody cases.

When parents divorce or separate, kids might have opinions on which parent they want to live with. North Carolina judges may consider a child’s wishes on custody, but those wishes won’t necessarily change the outcome of a custody case. A child’s needs—not wants are at the heart of any custody case.

This article explains 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

Parents can reach their own agreements on custody or leave matters up to a judge to decide at trial. Any North Carolina custody agreement must address both physical and legal custody.

Physical Custody

A parent who has physical custody primarily lives with the child. Parents can split physical custody, also called “joint custody.” In a joint physical custody relationship parents will both have ample time with the child, but one parent might have more one or more nights per week with the child.

The parent with primary physical custody is called the “custodial parent.” The other parent with secondary physical custody is called the “noncustodial parent.”

Legal Custody

“Legal custody” refers to a parent’s right to make major decisions on the child’s behalf. For example, a parent with legal custody can choose where a child goes to school or whether the child should undergo a major medical procedure.

In many cases, a judge will grant parents joint legal custody, unless it wouldn’t be in the child’s best interests. For additional information on physical and legal custody check out the North Carolina Judicial Branch’s Child Custody page.

Understanding a Child’s Best Interests in North Carolina

Some parents are able to reach their own custody agreements with a mediator’s help. When parents can't agree a judge will evaluate several factors to determine a child’s best interests. See N.C. Gen. Stat. § 50-13.2 (2020). A judge may evaluate any factor that’s relevant to a child’s best interests, including:

  • each parent’s wishes regarding custody
  • each parent’s living arrangements
  • each parent’s ability to care for the child, including physical and mental health
  • each parent’s willingness to encourage a relationship between the child and the other parent
  • the child’s age, health and overall needs
  • the child’s adjustment to home, school and community
  • each parent’s history of domestic violence, if any
  • each parent’s physical and mental fitness
  • the child’s preference, if the child has reached an appropriate age and maturity.

One parent’s adulterous affair won’t impact a custody decision unless that parent’s actions harmed a child’s well-being. However, a parent’s history of domestic violence can result in restrictions on that parent’s custody and visitation rights. A judge generally won’t award physical custody to a parent with a history of domestic abuse, unless the judge can be sure that the child is safe in that parent’s care.

Most often, an abusive parent will still be entitled to visits with the child, but those visits will be supervised by a designated third party or agency.

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. North Carolina doesn’t prescribe an age at which a child’s preference can be considered, but defines “the age of discretion” as the point when a child can form an intelligent and rational preference regarding custody. In other words, 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.

However, even an older, sufficiently mature child’s preferences won’t control the outcome of a custody case. In one North Carolina 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.

The court in that case determined that while the child was sufficiently mature, his preference was based on immature reasons as the father’s lax rules. Because it wasn’t in his best interests to live with his father, the court refused to grant the teenager’s preference.

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, an older, mature child’s preference can serve as a tiebreaker.

Can a Child Refuse Visitation in North Carolina?

When someone asks “what age can a child leave home in North Carolina”, the answer is 18. The age of majority in North Carolina is 18 years old and this means your child custody order governs visitation until a child turns 18 or is emancipated. Custody orders are for a child’s benefit—not a parent’s. One parent can’t prevent visits between the child and other parent.

When a young child refuses visitation, a custodial parent could be on the hook if that parent isn’t doing everything possible to help make visits happen. However, courts recognize that a parent has much less control over a teenager than a toddler. North Carolina judges will encourage a child to build a relationship with both parents, but courts typically won’t threaten or sanction a child for refusing visits.

Can Child Testify in Court in North Carolina?

A child can, but doesn’t have to, testify in open court in North Carolina. In most cases, judges try to keep children out of courtrooms and their parents’ custody battles. A judge 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 the judge’s 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 custody evaluator 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 and his or her best interests, 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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