At what age do my kids get to decide who they live with?

Parents in custody disputes often ask me “How old do my kids have to be to decide who they live with?” The simple answer to that question is that they do not get to decide. If parents can’t agree on that issue and end up in Court, a Judge will make that decision. But let’s explore a slightly different question: “When and how will a judge consider the opinions and preferences of my child?” And that’s a great question with an interesting and fairly complicated answer. Let’s talk about it.

The North Carolina custody statute does not contain any provision that specifically addresses this issue. However, decisions by North Carolina appeals courts have established that trial Courts have discretion on the issue of the testimony of children in custody cases. And the cases addressing that issue have established that once a child reaches the age of 10 or more, an appeals court is probably not going to overturn the decision of a trial court to allow the child of such an age to testify. Moreover, the older a child gets the less likely it is that there will be any barrier to considering the testimony of the child. Does this mean that a judge has to allow a 10-year-old to testify? No. But it does mean that a judge is free to allow such testimony. And because that is the case, most judges will allow some sort of testimony from children to be considered once a child reaches the age range of 10-12 years old, and almost all judges will consider the testimony of kids who are age 13 or older.

Does that mean that a 10-year-old child will be allowed to testify on a witness stand in a custody hearing or trial? That usually will not happen due to another option that exists. Judges are allowed to question a child outside of the courtroom, usually in the judge’s “chambers” (which is an old-fashioned term that basically means the same thing as an office), and usually with only the attorneys for the parties present to observe the questioning. It’s very important to understand the rules for how an in-chambers interview is allowed to occur. North Carolina appellate caselaw establishes that an in-chambers interview, which occurs outside the eyeshot and earshot of the parents, can only occur if BOTH of the parents agree for that to happen. If both parties agree to the in-chambers interview, caselaw requires that the Judge allow the attorneys to be present for the interview to at least observe. The Judge may allow the attorneys to also ask the child questions. If both parents agree, the Judge may conduct the in-chambers interview one-on-one with the child, without the attorneys present. It’s been my experience that a one-on-one meeting between the judge and the child is the most effective method for accurately securing the opinions and preferences of a child, but again, that can only occur if both sides agree.

The North Carolina custody statute does not contain any provision that specifically addresses this issue. However, decisions by North Carolina appeals courts have established that trial Courts have discretion on the issue of the testimony of children in custody cases. And the cases addressing that issue have established that once a child reaches the age of 10 or more, an appeals court is probably not going to overturn the decision of a trial court to allow the child of such an age to testify. Moreover, the older a child gets the less likely it is that there will be any barrier to considering the testimony of the child. Does this mean that a judge has to allow a 10-year-old to testify? No. But it does mean that a judge is free to allow such testimony. And because that is the case, most judges will allow some sort of testimony from children to be considered once a child reaches the age range of 10-12 years old, and almost all judges will consider the testimony of kids who are age 13 or older.

Does that mean that a 10-year-old child will be allowed to testify on a witness stand in a custody hearing or trial? That usually will not happen due to another option that exists. Judges are allowed to question a child outside of the courtroom, usually in the judge’s “chambers” (which is an old-fashioned term that basically means the same thing as an office), and usually with only the attorneys for the parties present to observe the questioning. It’s very important to understand the rules for how an in-chambers interview is allowed to occur. North Carolina appellate caselaw establishes that an in-chambers interview, which occurs outside the eyeshot and earshot of the parents, can only occur if BOTH of the parents agree for that to happen. If both parties agree to the in-chambers interview, caselaw requires that the Judge allow the attorneys to be present for the interview to at least observe. The Judge may allow the attorneys to also ask the child questions. If both parents agree, the Judge may conduct the in-chambers interview one-on-one with the child, without the attorneys present. It’s been my experience that a one-on-one meeting between the judge and the child is the most effective method for accurately securing the opinions and preferences of a child, but again, that can only occur if both sides agree.

Continue learning in Child Custody Questions – Part 3 >

Follow from the beginning in Part 1 about Child Custody in North Carolina >

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Is it possible to get sole custody? Is it possible to get more than half of the custodial time?

I frequently encounter people who are trying to protect their children from being harmed by the other parent. Often, such people feel frustrated and defeated before ever speaking with a lawyer because so many friends have told them something to the effect of “everyone gets 50-50 custody” or “Judges give everyone 50-50 custody unless you can prove some sort of severe endangerment.” Such statements are probably even more discouraging and confusing given the fact that most people have very little understanding of how custody is even determined in North Carolina, and often don’t even have a proper concept of the terms involved. People throw around terms like “full custody” and assume they have meaning regarding the amount of time each parent has with the kids, as well as decision-making authority. In reality, Family Court judges in North Carolina determine “legal custody” and “physical custody” separately. In each case, a Judge will decide legal custody, which refers to which party (or both) will enjoy the ability to decide big-picture issues such as where a child enrolls in school or whether a child will undergo a major medical procedure. Separately from that, a judge will decide physical custody, which involves what amount of time a child will spend in the household of each parent, whether it be every other weekend or every other week.

Regardless of whether we are talking about legal custody or physical custody, I’m here to tell you that the “everyone gets 50-50” myth is simply not true. At all. Such a notion has no basis in North Carolina law. For purposes of what we are discussing in this post, the relevant sections of the North Carolina custody statute read as follows (I have underlined certain portions for purposes of discussion and have omitted other sections):

Ҥ 50-13.2.

(a) An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will best promote the interest and welfare of the child. In making the determination, the court shall consider all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party….

(b) An order for custody of a minor child may grant joint custody to the parents, exclusive custody to one person, agency, organization, or institution, or grant custody to two or more persons, agencies, organizations, or institutions….”

The portion of the custody statute that I just quoted mandates that a Judge decide custody, whether that means decision-making authority or the amount of custodial time, based upon the “best interests of the child” (or “best interests of the children”). That is the only standard. And a Judge is obligated to make a ruling based upon whatever the weight of the evidence reveals. If you and your attorney can compile admissible evidence, whether it be positive evidence in your favor or negative against the case of the other side, that proves that it’s best for your kid to spend more time with you, then a judge must enter an Order requiring that. There are no exceptions to that requirement. And that means that if you believe your children are better off with you, and that you can prove it, then you always have a chance of getting that outcome in Court.

So why do rumors such as “everyone gets 50-50” persist? I think such misconceptions linger due to a combination of confusion and cowardice. People get confused due to the fact that 50-50 custodial time is an ideal. And when the evidence doesn’t point in the direction of either parent, then a Court ought to give great weight to that ideal. But the vast majority of people who end up fighting over kids are NOT in an ideal situation, and in those cases the evidence usually points in one direction or the other. What did I mean when I mentioned cowardice? I think far too many lawyers are afraid to go to trial and lose. So they conceal their fear and avoid trial by advising litigants that 50-50 custodial time is inevitable and that it isn’t worth fighting for something more. And that message gets spread around through the gossip mill, unfortunately. But that message is patently untrue. The lesson? Don’t follow the advice of cowardly lawyers. The law takes the best interests of your children seriously. If you believe that is worth fighting for, then it’s definitely possible to get the outcome you want in at trial.

See more questions answered in Child Custody Questions – Part 2 >

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The Lawyers of Distinction is pleased to announce that Attorney Richard Gantt of Raleigh, NC has been certified as a distinguished 2021 Member of Lawyers of Distinction.Lawyers of Distinction is recognized as the fastest growing community of distinguished lawyers in the United States. Members are accepted based upon objective evaluation of an attorney’s qualifications, license, reputation, experience, and disciplinary history.

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