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Child's Preference in Custody Cases

Posted by J. Benjamin Stevens | Jan 31, 2006 | 0 Comments

Rarely does a week go by in which I am not asked the following question: How old does a child have to be before he can choose which parent he/she wants to live with? Put another way, what is the “magic age” in South Carolina when children are able to make a decision in custody cases?
Fortunately, there is no such “magic age” in South Carolina. In our state, the Family Court must consider the preference of every child, no matter how young or how old. Of course, the Court is also required to place the appropriate weight on the child's reasons for having such a preference. This second step is equally important (if not more so) than the first one. The applicable statute on this issue is

S.C. Code Section 20-7-1515. Child's preference for custody to be considered.
In determining the best interests of the child, the court must consider the child's reasonable preference for custody. The court shall place weight upon the preference based upon the child's age, experience, maturity, judgment, and ability to express a preference.

Should there be a designate age at which children may make this decision? I believe that the answer clearly is “no.” Why? Some of the reasons for my opinion are listed below:

  • Most children are simply not mature enough to consider all of the implications of a custody determination. Children love both of their parents, and if being candid, they would tell you that they want to live with both of their parents and not one vs. the other. To them, anything less can simply be unacceptable.
  • Most children prefer to live in the least restrictive environment, and this is especially true with teenagers. If you were a fifteen year old, which of the following parents would you pick: Parent A who lets you come and go as you please, stay out until all hours of the night, not do chores around the house, and not put the proper emphasis on schoolwork, or Parent B who has strict rules with regard to all of those issues? Which of those households is more likely to help that child grow into a successful adult?
  • Children are subject to improper influence by their parents or others. Unfortunately, a parent who is desperate to “win” a custody case will attempt to bribe a child to choose him/her over the other parent. What young child would not be enticed (at least somewhat) by the lure of a shiny new video game system, motorcycle, or dance lessons? What if grandma or grandpa offers those items to the child if he “picks” a certain parent?
  • Children do not want to upset their parents. In fact, it is not uncommon for children of conflicted divorces to begin to take on some parental responsibilities toward their parents. Could this desire not to hurt a parent's feelings or disappoint him/her lead a child to make a choice on that basis? Is that really in the child's best interest?
  • Family Court judges will tell you that custody decisions are among the toughest decisions they must make. Why should we believe that a 10, 12, or 15 year old child should be able to address such a difficult issue? A child should never be put in that position or allowed to make such a difficult, often agonizing, decision.

About the Author

J. Benjamin Stevens

Aggressive, creative, and compassionate are words Ben Stevens' colleagues freely use to describe him as a divorce and family law attorney. Ben is a Fellow in the prestigious American Academy of Matrimonial Lawyers, the International Academy of Family Lawyers, and is a Board Certified Family Trial Advocate by the National Board of Trial Advocates. He is one of only four attorneys in South Carolina with those simultaneous distinctions. To schedule a consultation with Ben Stevens call (864) 598-9172.


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