Courts must consider various factors when determining which child custody arrangement serves a child’s best interests – including the child’s preferences. Although a child’s choice cannot override the court’s determination, courts may consider their stated preferences if they are old enough to express a reasonable opinion about which parent they prefer to have primary custody. As children age and develop maturity and judgment, courts may give even more weight to a child’s stated preferences in a custody proceeding.
Will the Court Give More Weight to the Child’s Wishes If They Are Over a Certain Age?
The older a child gets, the more weight a court may give to their opinions during custody proceedings. Once children turn 15 or 16, courts may place substantial weight on their stated preferences, especially if they can give credible reasons. Under state law, the weight that a court gives to a child’s preference must depend on the child’s age, experience, judgment, maturity, and ability to express a preference. This means a court may also give more weight to the choice of a young child who shows enough maturity and judgment to the court.
What Factors Does a Judge Consider When Determining Custody?
When deciding custody, a judge must determine whether a proposed custody arrangement serves the child’s “best interests.” State law lists multiple factors that a trial court should consider when deciding what is in a child’s best interests, including:
- The child’s developmental needs
- Each parent’s ability to understand and meet their child’s needs
- The child’s stated preferences
- The parents’ preferences
- The past and current relationship between the child and each parent, the child’s siblings, and any other family or household member
- The efforts of each parent to encourage the child’s relationship with their other parent, including complying with court orders
- Any manipulative or coercive behavior designed to involve the child in the parents’ dispute
- Any history of either parent criticizing the other in front of their child
- Each parent’s ability to remain actively involved in the child’s life
- The child’s adjustment to their home, school, and community environments
- The stability of the child’s existing or proposed residence
- The mental and physical health of the child and the parents
- The child’s cultural and spiritual background
- Whether the child or their siblings have suffered abuse or neglect at the hands of one or both parents
- Whether one parent has perpetrated domestic violence and the effects of such domestic violence on the child
- Whether one parent has relocated more than 100 miles from the child’s primary residence in the past year for non-safety-related reasons
The law also allows courts to consider any other factors it deems relevant to the case.
What If a Child Does Not Want to Live with a Parent?
When a child states that they do not want one of their parents to have primary custody, the court must consider the child’s preference in the context of their age, maturity, judgment, and reasons for their preference. The court also must evaluate the child’s opinion alongside the other custody factors.
A court may override a child’s preference if it finds that preference doesn’t serve the child’s best interests. For example, a court might not allow a child to live with a parent who has a history of domestic violence or child abuse despite the child’s stated preference to live with that parent.
However, courts may become less willing to “force” a child to live with a particular parent as the child ages. For instance, a court might not order a parent or law enforcement to force an older teenager into a car and take them to the home of a parent with whom the child refuses to live. The court may find that forcing a teen to live somewhere against their wishes may cause more harm than any good that might come out of that living arrangement. In these cases, an arrangement that might otherwise seem preferable would not actually serve the child’s best interests.
What Is the Process for Proving the Other Parent Is Unfit to Raise a Child?
A parent may object to their child’s other parent receiving primary custody, even if the child prefers to live with the other parent. When a parent prefers a custody arrangement different from the one their child wants, they may have to present compelling evidence to overcome the weight that the trial court places on the child’s opinion. This may include proving the other parent’s lack of fitness to raise a child. Factors that may prove unfitness to parent include:
- Inability to communicate with the child or appropriately respond to the child’s needs
- Failure to set age-appropriate limits, such as letting children watch adult content or consume alcohol or drugs
- History of domestic violence or child abuse and neglect
- Refusal to cooperate or compromise with the other parent regarding the child
- Consistent efforts to disparage the other parent in front of the child or sabotage the child’s relationship with the other parent
- Drug or alcohol abuse
- Lack of social functioning, including refusing to attend the child’s events or allow the child to participate in activities
- Refusal to seek treatment for documented mental health issues
Can Child Custody Agreements Ever Be Modified?
A parent can file a motion to modify a custody arrangement. When parents agree to a modification, the court will grant that change unless compelling circumstances convince the court that the parents’ proposed modification will harm the child’s best interests.
When a parent moves for modification of custody and the other parent objects, the parent who filed the motion may need to prove changed circumstances requiring a modification of the custody arrangement. They must also show that their proposed modification better serves their child’s best interests.
Contact a South Carolina Child Custody Lawyer
If you need help with a child custody matter in South Carolina, contact McKinney, Tucker & Lemel LLC today. We look forward to meeting you, hearing about your concerns, and advising you on your options.
