Board Certified Family Law Specialist Matt Arnold answers the question: “What can I do to gain custody of my child in North Carolina?”
The short answer is: no, children cannot simply decide which parent to live with under North Carolina’s family law. However, a child’s preference to live with either parent can be taken into consideration by the court during a child custody case.
- The age of the child;
- The maturity, intelligence, and mental capacity of the child;
- The rationale behind the child’s decision; and
- Whether a parent had any influence on the child’s preference.
The Child’s Preference vs. the Best Interest Standard
As you may know, all child custody orders in North Carolina are based on the “best interest” standard. Courts award custody based on the best interest of the child. A child’s expressed desire to live with one parent may not necessarily be in their best interest.
For example, if one parent allows their child to engage in unhealthy behaviors, their child may choose that parent over the other parent. However, that does not mean that the child’s decision is in their best interest.
While some states allow children of a certain age to choose one parent over the other, there is no such law in North Carolina that would allow children to choose which parent to live with at a certain age. In other words, it does not matter whether your child is 5 or 15. Their preference to live with either parent may be taken into consideration during a custody case, but there is no guarantee that custody will be awarded to the selected parent.
Also, if there is a child custody order in place, all parties must abide by the visitation schedule, including the child. If a child refuses visitation, the judge will determine whether either parent encouraged that behavior or influenced the child’s opinion. In North Carolina, a judge can order a child to visit with a parent even if they do not want to.
Will a Judge Take Your Child’s Preference into Account?
In North Carolina, judges are not bound by the preference of a child when awarding custody. However, the judge may still listen to the child’s opinion in order to decide what is best for the child. Many judges believe that it would not be appropriate to bring a child into a custody battle. Instead, they would rather award custody based on factors other than the child’s preference.
It is advised to consult with a child custody attorney to determine whether it would be appropriate to bring your child into the courtroom to express their preference to live with you. Whether or not a judge will take your child’s preference into account depends on many factors, most important being what is in the best interest of your child.
In many cases, judges take a child’s expressed desire to live with one parent into account in cases that involve domestic violence and parental alienation. Also, keep in mind that a child may tell both parents that they are the better parent to please them. Therefore, just because your child says that they want to live with you does not necessarily mean that they do not want to live with the other parent.
Speak with our Charlotte child custody attorneys at Arnold & Smith, PLLC, to discuss your options. Get a phone or video consultation by calling at (704) 370-2828 to speak with our detail-oriented and well-versed lawyers with offices in Charlotte, Lake Norman, and Monroe, please contact Arnold & Smith, PLLC today or find additional resources here.
The family law practice group at Arnold & Smith, PLLC includes two Board-Certified Family Law specialists and one Child Welfare Law specialist, as well as several attorneys with many years of family law experience that are committed to providing a powerful voice to individuals facing the often-tumultuous issues in this area of law. The range of issues our family law clients may be facing include pre- and post-nuptial agreements; separation agreements; post-separation support; child support (both temporary and permanent); absolute divorce; divorce from bed and board; military divorce; equitable distribution of assets; child custody (both temporary and permanent); retirement benefits and divorce; alimony and spousal support; adoption; and emancipation. Because this area of the law is usually emotionally charged and complicated, the family law attorneys at Arnold & Smith, PLLC act with the utmost dedication to ensure that each client understands his or her options, and then act to achieve the best result possible for that client’s particular situation.
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