Many parents going through a custody dispute want to know the age when their child can decide which parent they will live with. However, in a custody dispute, there is no magic age at which a child determines whether he is going to live with his mom or dad. The child may want to live with one parent because he can stay up all hours of the night playing Fortnite, can eat whatever he wants, has no chores or responsibilities, or doesn’t have to do his homework, etc.— i.e. the “no rules” or the “fun parent.” Or he may want to live with one parent because he gets the guidance and support he needs for homework, receives rides to activities and has a cheerleader to support him at games or other extracurricular events, and enjoys healthy meals provided by one parent—i.e. “good parenting”. In either case, while the minor child may have a preference as to which parent he prefers to live with, ultimately it will be up to the judge to decide if the case goes to a trial.
North Carolina General Statute §50A-13.2 states: An order for custody of a minor child entered pursuant to this section shall award custody of such child to such person, agency, organization, institution as will best promote the interest and welfare of the child. The best interest test is often referred to as the polar star that guides the judge in how to resolve custody issues. The court will consider all relevant factors for custody including: acts of domestic violence between the parties, the safety of the child, who has been the primary caregiver of the child, who has the best approach to discipline, the work schedules of the parents, and how each parent provides for the physical, emotional, educational, and spiritual needs of the child.
No matter the age of the child, the judge is going to look at who is best at caring for the child’s needs. Whether the child talks to the judge privately in chambers or takes the stand and testifies as to his or her wishes in court, the child’s desires are only part of the equation. While there is also no magic age in which a child can testify in court (a child needs to demonstrate they know the difference between the truth and a lie), judges and attorneys alike rarely want to see a child be put in the middle and testify in court. Even if the minor child states a preference, the judge will inquire further to determine why he or she has that preference, and the judge will consider all the circumstances of the case to determine what custody ruling is ultimately in the best interest of the child.
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