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When My Spouse and I Separate, Will Our Children Get to Choose Where They Live?

Posted by J. Benjamin Stevens | Feb 07, 2018 | 0 Comments

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Photo Credit: Gabby Orcutt, Unsplash.com

Rarely does a week pass when 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, if deemed reasonable to do so. The Court will typically use the investigative efforts and input of an appointed Guardian ad Litem to do so. Of course, the Court is also required to place the appropriate weight on the child's reasons for having such a preference. The applicable South Carolina statute on point is:

S.C. Code Section 63-15-30. 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.
 

So, the obvious question remains, should there be a designated age at which children may make this decision? I believe that the answer clearly is “no.” There are many reasons for this - some of the most important are listed below:

  • Most children are simply not matured 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? However, 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 wouldn't 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 child custody rulings 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. 

While it may seem logical to many to simply “ask the kids” what they prefer in these emotional cases, the long-term damage that choice may cause must be considered above all else. The South Carolina Family Court, along with our legislature, has attempted to protect children of separation and divorce from such damage. If you are facing a separation or divorce involving child custody issues, we can help guide you through the process and protect what matters most for your children's wellbeing.

The Stevens Firm, P.A. - Family Law Center has provided exceptional legal counsel and support to families throughout South Carolina for over two decades, handling all matters of family law, such as child custody, child support, and divorce. We are well-equipped to handle all divorce and family law matters, no matter your circumstances. Contact us to schedule an initial consultation.

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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