Can a Child Choose Which Parent to Live with in South Carolina?

As divorce attorneys in Mount Pleasant, South Carolina, we know that custody disputes can be among the most difficult cases for a divorce lawyer to handle. In South Carolina, a child does not get to choose which parent to live with, but the family court may consider the child’s preference. This article examines all of the factors involved in deciding whether a child’s preference carries any importance with a family court judge.

A Judge May Consider a Child’s Preference in South Carolina Child Custody Cases

Under South Carolina law, a child is a person who is under the age of 18. In deciding which parent should have custody of a child, South Carolina’s family courts focus on the “best interests of the child” which includes the child’s reasonable preference for custody. Just because a child has a preference doesn’t mean that family court will go along with the child’s wishes. Instead, the court decides how much importance to give the child’s preferences based upon the child’s age, experience, maturity, judgment, and ability to express a preference.

Obviously, the older a child is, the more weight a family court judge is likely to place on the child’s preference for custody. The younger a child is, the harder it is to satisfy the family court that the child has enough maturity and judgment to make a reasonable decision.

  • Children Under 12 Years Old – There are no South Carolina cases indicating that the family court will give great weight to the wishes of a child under the age of 12.
  • Children Ages 12 to 14 Years Old – In one case, the family court gave great weight to the preference of a 12-year-old child because the court noted that she was mature for her age. In another case, the family court judge gave weight to the wishes of a 14-year-old who didn’t want to move away with his mother because he wanted to remain in his neighborhood and his school in South Carolina.
  • Children Over the Age of 14 – Based on my professional experience, at this age the court begins to give more weight to the child’s preference especially in cases where the child is 16 or older. In a recent custidy case we were involved with, our client’s 16-year-old son refused to return with her after her son had an extended holiday with the father. During court, we argued that despite the boy’s desire to stay with his father, this wasn’t in the boy’s best interest based upon the father’s past criminal and drug abuse history. Unfortunately, the family court expressed that there was little the court could do. Specifically, the judge wasn’t going to order the father or some law enforcement officer to physically force the boy in the mother’s car to drive home. The court was concerned that forcing the boy to return with his mother would cause more (emotional) harm than good and that enforcing the order granting mother custody wasn’t in the child’s best interest.

Can a Child Testify in Family Court in South Carolina About Custody?

Although nothing prohibits a child from testifying, family court judges don’t like to see children going through the difficulty of testifying either in a courtroom or in the judge’s chambers. Typically, a guardian ad litem (GAL) voices the child’s preference. A GAL is a third party who is assigned by the family court to investigate a custody case from the perspective of the child’s best interests and to report back to the court. The judge will then use the Guardian’s report along with the other evidence to decide what is in the child’s best interest.

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