Considering the Child’s Preference in Custody Decisions

Child CustodyWhen children are old enough to have an opinion on such things, many families wonder whether the child’s preference on whether to live with mom or dad can or should play a role in the final decision.  Not surprisingly, the answer depends on the situation.

Situation One:  Everybody Agrees

In practice, joint agreement among the adults involved in the custody matter is the most common way to resolve custody questions.  Thus, if the child and the parents (or other adults involved) are in agreement about where the child should primarily live, then the child’s wishes can be honored.  To the extent that a child can make his or her wishes known and the adults agree, the child can essentially “decide” where to live.  This is not uncommon, since the child may clearly be more bonded with one parent, and the parents may share the understanding that the child needs to live with the more bonded parent.

Ideally, parents know their children the best and are in the best position to make decisions about how to best meet the needs and best interests of their child.  If parents can come to mutual agreement about living arrangements, then they can also be flexible to revisit which home would be best if the child’s needs change as he or she gets older.  So, if the needs of the child begin to shift as the child ages into the teenage years, the adults may be able to go along with the child’s wishes if, for example, he feels that he would be better off living with Dad for a few years.  As long as everyone agrees, the custody arrangement is flexible and the child’s wishes can carry as much weight as the adults give them.

Situation Two:  One Party Disagrees

In contested cases where the parties (and perhaps the child as well) do not agree on how to resolve the custody matter, then the matter will likely be decided by a judge in domestic court.  In North Carolina domestic cases, there is no specific age at which the child’s opinion must or may be considered.  The judge has no obligation to find out the child’s opinion, or honor it once given.  Instead, the judge has discretion to give the child’s wishes as much (or as little) weight as he finds appropriate under the circumstances.  Judges are tasked solely with determining what is in the child’s best interests, not what the parents or the child prefer.

In determining what is in the child’s best interests, judges look at a number of factors, including the parents’ physical and mental health, the provision of affection and stability, sensitivity to the child’s needs, and the nature of communications between the parents.  Since each judge has complete control to weigh and balance a number of factors, it is very difficult to determine whether the judge’s decision will mirror the wishes of the child.  This is true even if the child is 16 or older and expresses a strong preference; unlike many other states, the judge may determine that the child’s best interests are served by completely overriding the teen’s preference.

Although this standard may be harsh in some cases, the reality is that many judges exercise their discretion to consider more thoughtfully the reasonable wishes of a child as he or she gets older.  Judges are certainly smart enough to know that keeping a child in a home where he or she does not want to stay becomes more and more difficult as the child passes 14, 15, or 16 years old.  Therefore many judges give more consideration to a teenager’s wishes when those wishes correspond to the emotional needs and relationship issues of the teenager.  The bottom line is that, in cases where a judge must determine custody, the judge is bound only by the best interests of the child, and will heed the child’s input only to the extent that it illuminates what is in his or her best interests.

One thought on “Considering the Child’s Preference in Custody Decisions

  1. Pingback: Child Custody in Military Divorce - Resign to Keep Your Child?

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