Do children get to decide who they will live with?

Wishes of the Child

Our North Carolina cases provide that the wishes of a child of “sufficient age to exercise discretion” are “entitled to considerable weight” in a custody case but the child’s wishes are not controlling.

Although other states hold to various ages at which the child’s testimony on this issue becomes relevant, the test in this state is whether the child has sufficient mental capacity and comprehension to offer a reasoned opinion about where he or she wants to live. The testimony of a child who is competent to testify on this issue might be heard in open court.

However, it is often preferable for the interview to be conducted in chambers. An interview between the child and the judge in chambers can be arranged through use of a stipulation between the parties.

In North Carolina, a judge is never required to defer to the parental preference of a minor child. In practice, as the child gets older and especially when the child is a mid-teenager, the judge may place more weight on the child’s own desires. Preference will not be the judge’s determining factor.

The determining factor will remain the best interests of the child. Visit our article on when children get to decide custody to find more detailed answers to this complicated question.


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