Will the Court Listen to a Child's Preference?
Updated: Oct 21, 2020
In South Carolina, there is no magic age when a child can decide where they want to live. The court looks at every case differently. When making a decision on who will have custody, the court must determine what is in the best interests of the child. However, the law requires the court to consider the child's reasonable preference for one parent over another. The court shall place weight upon the child’s preference based upon the child's age, experience, maturity, judgment, and ability to express a preference. Section 63-15-30 of the South Carolina Code (2010).
The controlling consideration in setting child custody and visitation is the child's welfare and best interest. High v. High, 389 S.C. 226, 244, 697 S.E.2d 690,699 (2010); Smith v. Smith, 386 S.C. 251, 272, 687 S.E.2d 720, 731 (Ct. App. 2009). In determining the best interest of the child, the family court considers who has been the primary caretaker; the conduct, character, attributes, and fitness of the parents as they impact the child; the opinion of the guardian ad litem and the age, health, and sex of the children. Patel v. Patel, 347 S.C. 281, 285, 555 S.E.2d 386, 388 (2001); Reed v. Pieper, 393 S.C. 424, 430, 713S.E.2d 309, 312 (Ct. App. 2011). The court must also "consider the child's reasonable preference for custody, " giving weight to "the preference based upon the child's age, experience, maturity, judgment, and ability to express a preference." S.C. Code Ann. § 63-15-30 (2010).
Nevertheless, section 63-15-30 of the South Carolina Code (2010) requires the family court to consider "the child's reasonable preference for custody ... based upon the child's age, experience, maturity, judgment, and ability to express a preference. The significance to be attached to the wishes of [a child] in a custody dispute depends upon the age of the child[ ] and the attendant circumstances." Brown v. Brown, , 362 sc 85 (Ct.App.2004).
If you question whether your child is old enough to decide which parent the child wants to live with, please contact the Women's Law Center at (864).707.1111. Every case is different and every lawyer needs lots of information before answering this question. Google is great, but it cannot answer every legal questions definitively. That’s what an attorney is for.