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Will a Judge Consider the Child’s Preference in a Custody Decision?

Who gets custody of minor children is often the most contentious issue in a divorce proceeding. The custody ruling determines where children will reside and who makes important decisions on their behalf. If the divorcing couple cannot agree on a custody arrangement amongst themselves, a family court judge will decide, and a child’s preferences may, in certain instances, affect the court’s custody determination.

Judges are required by law to put a child’s “best interests” first and foremost. Many states specify those factors that judges must evaluate in custody decisions. However, North Carolina gives family court judges very broad discretion. A judge may consider all points he or she deems relevant to custody, including:

  • The health and safety of the child
  • The effect the decision will have on the child’s education and participation in extracurricular activities/hobbies
  • The ability for the child to maintain their friendships
  • Each parent’s fitness to raise their child

A child’s wishes may be considered in certain circumstances. The child must be sufficiently mature to both develop and communicate his or her custodial preferences. Generally, the older the child is, the more likely his or her custodial preferences will be taken seriously. Unlike some states, North Carolina does not prescribe an age at which judges should take a child’s wishes into account, so the issue of a child’s maturity is left to the sound discretion of the court. Moreover, a judge has the authority to completely disregard a child’s preferences if the judge finds that their preference is contrary to their overall well-being. This often happens in cases where a parent has unduly influenced a child against the other parent.

Children who are the subject of a custody dispute rarely testify in open court, as being a witness in court proceedings can be very stressful for them. The formal, adversarial environment might impact the accuracy and completeness of a child’s testimony. In addition, having the parents present might put undue pressure on the child to slant their testimony in favor of one parent or the other. When a family court judge decides that a child’s preferences should be addressed, they most often interview the child in private. This is usually done in the judge’s chambers. An informal interview is less stressful and prevents either parent from being able to influence the child’s testimony.

With offices in New Bern and Morehead City, the Carolina Law Group, led by attorney Tommy Kellis, is one of the region’s premier family law firms. If you are dealing with a child custody issue, feel free to contact us online or call 252-636-3737 for an initial consultation.

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