The Children’s Desires and Custody

In Child Custody by Sarah Hink

Statistically speaking, it is relatively rare that child custody matters are actually put before a judge for a decision. This is because people know that taking a case to court is incredibly expensive and parties can often reach some kind of agreement that both parents can live with. Unfortunately, a case goes before a judge when the parents have drawn a line in the sand and are unwilling to budge on what they believe is best for their children. When this happens, North Carolina family courts are given broad discretion to make decisions in the best interest of the child.

Best Interest Factors

The best interest of the child is a concept that almost universally appears in jurisdictions nationwide in matters of child custody. It gives the court broad discretion to consider the circumstances of the child. In North Carolina, some of the factors that a court may consider in its best interest finding are:

  • Acts of domestic violence, child abuse, or substance abuse.
  • The parenting roles of each parent.
  • The parents’ plans for the child.
  • The emotional and physical needs of the child.
  • The medical or educational needs of the child.
  • The parenting abilities and limitations of the parents.
  • The parents’ work schedules and their time available to spend with the child.
  • Whether the parent intends to foster the child’s continued relationship with the other parent.
  • The preference of the child, so long as the child is of suitable “age and discretion.”

The Child’s Preference

The statutes in North Carolina do not specify an age at which a child has discretion to provide their custody preference. Generally, courts will look at case law established by the Courts of Appeals for guidance. As such, the courts will seek to determine whether the child is “competent” to provide testimony by gauging their maturity, their understanding of the situation, and the ability to distinguish the truth from a lie.

The procedure for eliciting the child’s preference also depends on the court and the circumstances of the child. The courts will balance the trauma of the child testifying versus the right of the parents to cross-examine the child. The judge may resolve this by speaking to the child in chambers, by allowing attorneys to question the child outside of the parents’ presence, or by appointing a guardian ad litem to represent the child’s interest.

However, even if a child is competent to express his or her preference, that does not mean that the court is going to follow that preference. While the court must give the child’s desires weight, it can also consider the many other factors when reaching its best interest determination.

New Direction Family Law

Child custody matters are incredibly challenging. This is especially salient in circumstances where the child is being asked to provide their preference—which is quite a position to put a child in. If you are attempting to resolve a child custody issue, contact New Direction Family Law. Our attorneys proudly work to help people through family law cases, including custody disputes. Our team will provide you with sensitive, no-nonsense legal guidance. We serve Wake, Johnston, Lee, Harnett, Cumberland, Nash, Granville, Franklin, and Durham counties. Call our office today at (919) 719-3470 or reach us online.

Sarah J. Hink
New Direction Family Law

New Direction Family Law
(919) 719-3470