Can My Child Choose Which Parent They Want to Live with in NC?

If a child’s parents divorce, they may prefer to live with one parent over the other. In North Carolina, children can tell a court their wishes about which parent should have custody. However, courts must act in the child’s best interest, even if that interest goes against the child’s wishes. In this post, we’ll explain how North Carolina’s custody laws and doctrines apply when children express a parental preference.

What Is the Child’s “Best Interest?”

In order to explain how the court will handle a child’s wishes, we should first explain basic child custody laws, such as Chapter 50-13.2 of North Carolina’s General Statutes. Section (a) states that custody orders from state judges must “best promote the interest and welfare of the child.” Though the law explicitly states that keeping the child safe from domestic violence is to be a factor in making the decision, courts could also examine a variety of other factors, such as:

• A parent’s financial stability
• A parent’s criminal record
• A history of a parent abusing alcohol or drugs
• A child’s school and social life
• How a parent’s lifestyle would or wouldn’t enhance the child’s welfare
• How parents would likely interact with each other after the divorce is finalized

Whether the parents negotiate a custody agreement or a judge issues a custody order, the court will always have the final say on which parent children live with after a divorce. Just as judges must consider the child’s best interest, so should each parent.

A Child’s Wishes and Negotiations

Before custody issues go to court, parents often need to enter into mediation. Mediation consists of negotiations between the parties that a neutral mediator oversees. The goal of mediation is for the parents to draft and sign a custody agreement that synthesizes their mutual preferences with the child’s best interest.

If a child feels strongly about living with one parent over the other, they may make their preference directly known to the parent. While the parent could theoretically use their child’s preference as leverage in negotiations, they must focus on the objective best interest of the child. Negotiations could lead to a joint custody agreement, or if negotiations are not successful, either parent may ask the court to settle the dispute.

Factors Determining the Weight of a Child’s Preference

When the parents ask the court to make a determination regarding custody, a child may have the opportunity to express their preference as part of a custody hearing. A judge may consider the child’s preference under certain conditions. Some factors judges might use to determine how much weight to give a child’s wishes include:

• The child’s age and maturity level – Custody decisions must reflect the child’s “best interest” until they turn 18, regardless of the child’s preferences. However, children may not be powerless in the dispute just because they are minors. If a judge determines that a child is mature enough to decide who they would prefer to live with regardless of their age, they may give heavier weight to those wishes.
• The reason for the preference – If a child expresses their wishes to the court, the judge may ask them why they prefer the parent they do. If their rationale conflicts with what would be their best interest based on other information, then a judge may choose not to consider their preference.
• Likelihood of coercion – If a judge suspects that a parent coerced or manipulated their child into preferring them or that the child is expressing “wishes” simply to appease a parent, they may decline to consider a child’s preference.

In any case, a child can only choose which parent they want to live with if their preferences happen to be in sync with their best interest.

Consult a Raleigh Child Custody Attorney

The Raleigh child custody attorneys of Marshall & Taylor PLLC, we offer parents faced with child custody matters firm, compassionate representation in a supportive environment. We are ready to answer any questions you may have about the process of custody determination. We understand the exponential stress that custody issues can place on those facing divorce. Let us fight for a fair custody agreement that supports you and your children.

Contact our office today at (919) 833-1040 for an initial consultation and to learn more about our legal services. Don’t go through this difficult period alone. We can help.