Will a Court Consider a Child’s Preference in Deciding on Custody and Visitation?

Divorce can be emotionally harmful to the children involved. In recognition of the fact that children benefit from family stability, North Carolina courts generally favor preserving a child’s continued relationship with both parents. Sometimes, deciding on a suitable custody and visitation arrangement includes taking a child’s individual preferences into account.

Custody and visitation decisions are based on what the court deems to be in the child’s best interests. A number of factors are considered, including the following:

• The parents’ wishes concerning custody
• The living arrangements of each parent
• The physical and mental health of both parents
• Each parent’s willingness to encourage a relationship between the other parent and the child
• The child’s age and health needs
• The child’s adjustment to their home, school and community
• Any history of domestic violence

However, children — especially when they become teenagers — might have their own ideas about where and with whom they would like to live. The question of how much weight to give the child’s preference depends on the child’s perceived ability to make an independent, rational decision.

Specifically, a judge must determine that the child has reached the “age of discretion.” In other words, the child is mature enough to form an intelligent preference and one that is not overly influenced by parental strictness or leniency. For example, a child might wish to live with a parent who does not impose stiff curfews or other house rules, but awarding primary custody to that parent may negatively affect the child’s safety or health.

A child’s preference can also be considered with regard to visitation. As children grow older, they become more involved in social circles and activities that they may not want to interrupt by visiting the noncustodial parent. If a child refuses to follow the visitation schedule that was established, the custodial parent may be subject to a contempt action. However, courts recognize that it can be more difficult for a parent to force visitation upon an adolescent. A judge will evaluate several factors, including the child’s age, the reasons the child refuses to visit and the efforts made by the custodial parent to compel visitation. If a child doesn’t wish to visit the noncustodial parent due to unsuitable living conditions, the court may decide to modify the existing order.

Bear in mind that once a child custody and visitation order is in place, neither parent can unilaterally change it unless both parties agree or the court issues a ruling — regardless of the child’s wishes. In seeking a proper modification, it is beneficial to have the representation of a skilled attorney who can make the best case for the result you want.

The Moore Law Office, PLLC has extensive experience representing clients in a wide variety of family law cases in North Carolina, including child custody and visitation matters. Call 828-258-8053 or contact us online to schedule a consultation at our Asheville office.