Clients often ask me questions like this: “My child is twelve now. I am separated from my spouse. Can my child choose with which parent my child wants to live?”
No. In North Carolina, there is no “magic age” at which a child can legally decide with which parent to live after the parents separate. Our courts are bound not by the child’s preferences, but by the child’s “best interest.” “Best interest” includes the child’s preference and happiness, but also factors such as stability at home, appropriate discipline and structure, nurturing, helping the child with schoolwork, and getting medical care. The N.C. Supreme Court has said that the child’s best interest is the “polar star” of child custody decisions, and guides how that decision will be made.
One reason there is no “magic age” for custody is that children mature at different rates. Depending on the child’s age and maturity, a judge may consider the child’s preferences by some means. For example, if the judge believes the child is sufficiently mature to talk to the judge about his or her preferences, a judge may do that. Some children may be mature enough at 11, and some wouldn’t be mature enough at 16 – so it depends on the individual child. Some children want to talk to the judge, while others want to stay out of their parents’ conflict. If a judge talks to a child about custody preferences, the judge usually prefers to do so “in chambers” in the judge’s office, rather than on the witness stand. The reason is that this is usually more comfortable for the child. Judges usually do not appreciate a lawyer insisting on calling a child as a witness and having the child actually testify from the witness stand, because this can be a frightening experience for the child.
Another way children (particularly younger children) may be able to have some input in the decision is in a report from a Guardian Ad Litem or other custody evaluator. This is an independent person, usually a lawyer or a mental health professional, appointed by the judge to do a custody evaluation or to advise the judge on particular issues. This evaluator talks to the child, the parents, and others with useful information. The evaluator reports findings to the judge. That report may include what the child has said to the evaluator about time with each parent and preferences. Evaluators usually don’t put children on the spot by asking them to identify with which parent they would like to live. Some older children may volunteer that information. Younger children are often asked about what they do when they are with mom or dad, and about how things are in each household.
Although judges care about children’s happiness, children do not always have good reasons for their preferences. For example, if a child wants to live with mom because mom lets the child do anything the child wants, or wants to live with dad because dad promised to buy a pony, the judge won’t be persuaded by that preference.
Judges can consider the child’s preference in making custody decisions. However, regardless of the child’s age, the judge makes the child’s overall “best interest” the “polar star” in the decision.
Kim K. Steffan is an attorney with Steffan & Associates, P.C. in Hillsborough, NC. She can be reached at 919-732-7300 or firstname.lastname@example.org.
This article was last updated in January 2020.