I often get asked what impact a child’s wishes has on the court’s determination of custody. In North Carolina, your child does not get the final say.
The law is that the court may use what a child tells him or her as evidence, but the final say is the judge’s. North Carolina law does not set out an age when a person may be a witness in court. The legal test is whether the minor is a competent witness and that means they have to be able and old enough to know what it means to tell the truth and can express them selves in an understandable way.
Unless both parties agree, the child must testify from the witness stand. This is a very stressful event for the child, the parents, lawyers and judge. Usually, if a child is going to be brought in, everyone wants the impact on the child to be reduced as much as possible. Usually there is an agreement that the district court judge will talk to the judge in her office.
Regardless of what a child has to say about their preferences, a judge may decide in favor of the other parent. This is because sometimes the district court judge with find that what the son or daughter is saying has been “bought” by a parent with promises. Sometimes, the court might find that the child simply does not know what is best for herself. For example, the parties’ son might prefer to live with the parent who has fewer rules, more flexibility with curfews, or who does not make them do chores. The maturity of the minor is a factor for the judge to evaluate.
In conclusion, deciding where the child should live is about what is in the best interest of the child and not about what the child says he or she wants.
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Raleigh child custody attrorney Scott Allen handles modification of custody, child custody, and temporary custody hearings and has over seventeen years of experience.
If you have questions or need assistance call him at (919) 863-4183 or email at sallen@allenspence.com.