When Does the Child Get to Decide?”

The child gets to decide if the decision-makers agree to the child’s future living arrangements, and such an agreement coincides with the wishes of the child. In actuality, joint agreement is the most common way parents resolve custody of a child. This is the most common outcome since a child’s needs to be with a particular parent, or in a particular location, may be evident, and because most parents share an understanding of their children’s needs. Therefore, even young children unable to articulate a preference for their primary living situation often show through their conduct a greater desire toward one parent, caretaker or living situation (this is illustrated when a child favors certain neighborhoods, day care centers, or existing friendships). Thus, the most important people in the child’s life recognize the child’s needs, and act accordingly.

A parent’s ability to identify his child’s basic needs for a “best fit” living arrangement continues until the child reaches the age of majority (typically 18 years of age). Such identification is flexible, ready to change the child’s home as the needs of the child change. For instance, a child’s current needs might require that he live with his father from ages 4-10. However, if his needs change by the end of elementary school, his parents can often agree to modify physical custody to suit his needs.

A late change in a child’s living arrangement may (and often does) occur when the child insists that it’s time for him to live with the other parent. So long as everyone continues to agree, the child’s preference can be enforced.

When does a child not get a say?

If you and your former spouse disagree strongly enough about your child’s wishes to change the arrangement, the child will not necessarily get to decide his or her living arrangement. The term “strongly enough” means that, as parents, you seek outside resolution over a living arrangement dispute, regardless of a child’s preferences. Typically, this move will end in domestic court, where the judge will decide this issue.

Nevertheless, mediation and arbitration are becoming increasingly popular among parents for resolving custody disputes. The mediator or arbitrator of a dispute will try to find areas of agreement between the parents about the weight to be given to the child’s wishes, because a mediator will seek to aid the agreement of all the parties over the best arrangements for the child.

On the other hand, in North Carolina, the law gives the judge discretion to interview or not interview a child, as well as discretion to pay or not pay attention to the preferences of a child. As in a mediation situation, in court, the judge can grant the child’s wishes as much or as little weight as he deems appropriate.

The difference between the resolution of the court and a mediator revolves around the purpose of each. The judge is not in the business of facilitating agreement between parents. A judge’s determination of a child’s best interests can be starkly different from a child’s, or even a parent’s, views. There are numerous factors judges consider in custody cases, which include:

  1. a parent’s capacity for affection;
  2. modeling;
  3. steadiness;
  4. a parent’s physical and mental health;
  5. sensitivity to a child’s needs and the ability to act on those needs;
  6. the nature of a parent’s relationship with the other parent.

The judge’s consideration of such factors have no predictable correlation with the expressed preferences of a child. A judge may give greater weight to a child who appears mature enough to understand the situation. However, many child psychologists and judges agree that no child should be tasked with choosing between his or her own parents.

A judge is likely to disregard the wishes of a child when he suspects, whether rightfully or wrongfully, that a parent has influenced, induced or motivated a child’s preferences. Such influence is known as parental alienation. In these cases, the judge can request additional psychological data concerning the child, in attempts to discover the child’s genuine wishes.

In North Carolina, a judge’s complete discretion to overrule a child’s preference can lead to surprising results.  Under North Carolina law, a judge can enter an order requiring a 16-year-old boy to live with his mother, despite his persistent demands to live with his father, while he and his mother physically and verbally fight over the issue.

Unlike other states, North Carolina law allows a judge to completely override a teenager’s firmly expressed preferences until he reaches the age of majority (18). However, while the law supports a judge’s decision to override a minor child’s wishes, in practice, family law judges tend to give more consideration to a child’s wishes as he gets older and better able to evaluate relationships and needs.

Additionally, judges recognize most children between the ages of 14 and 16 have an increased ability to demonstrate their displeasure over unsuitable living arrangements by acting out and even running away from home. Through experience, a judge understands that he can order a 15-year-old girl to live with her mother; however, the same 15-year-old who hates her mother will simply go to her father’s house the next day, and any other day after she is returned to her mother.

In conclusion, in deciding a child’s living arrangement, the court must use the best interests of a child standard to guide it to its decision. Additionally, only when a judge’s own determination of a child’s best interest overlaps with the child’s own preferences, will those preferences be honored by the court.  However, it is more likely that a child’s preferences will carry greater weight as he grows and matures, given that his wishes appear to be well-founded and genuine.