When you are going through a divorce as a parent in South Carolina, with whom your children will permanently live, and how much visitation time will be allotted to the other parent, is a huge deal. For many parents, knowing which living and visitation arrangement is best for their child is both a confusing and an emotional matter, and in some cases, parents may wonder if it makes sense to ask their child(ren) what their preferences are. In fact, this is one of the most common questions we get about custody and visitation cases—at what age can my child(ren) decide which parent to live with or what their visitation schedule looks like?
The answer is not as simple as providing a specific age, however. If you are going through a divorce or custody action in South Carolina, consider the following factors that affect a child custody determination, and the extent to which children have a say in custody and visitation when their parents are separating.
Factors that Affect a Child Custody Determination
There are a number of factors that a court will consider to make a determination about with whom a child should live. In all cases, the best interests of the child must be the court’s priority; in no way can the best interests of either parent trump those of the child. To determine what those best interests are, some of the factors the court may consider are as follows, as found in Section 63-15-240 of South Carolina Code:
• The needs of the child;
• The capacity of each parent to both understand and meet the child’s needs;
• The wishes of the parents;
• The preferences of the child;
• The relationship of the child with each parent, sibling, and other relatives;
• Any history of abuse or domestic violence;
• Whether or not either parent plans to significantly relocate; and
• Any other factors the court deems relevant.
As you can see above, the things a Court considers when determining the child’s best interests are multifaceted. And while a child’s preferences are one of the factors that may be considered, they are by no means the only consideration.
The Weight of a Child’s Preference
Digging deeper into South Carolina law, (S.C. Code Section 63-15-30), it is important to note that in analyzing a child’s preferences for custody and visitation, the court also has the discretion to place weight upon the child’s preference depending on his/her:
• Age;
• Experience;
• Maturity;
• Judgment; and
• Ability to express a preference.
Given the above, the simplest answer to the question of what age a child gets a say in his/her custody or visitation schedule is that it depends. Generally speaking, the older a child is, the more weight a judge or a Guardian ad Litem would place on that child’s preferences. Along with age, though, how mature a child is or his or her reasons for wanting a particular custody/visitation scheme will also be taken into consideration. For example, a mature and reasoned nine year old’s preference to spend more time at mom’s because dad is emotionally abusive or alienating may very well be given more deference than an immature fourteen year old’s preference to be at dad’s more often because he has fewer rules than mom. However, because it’s generally expected that with age comes maturity, the older children get, the more the courts start to pay attention to what they want and their reasons for wanting it. Otherwise, it’s often expected that parents, Guardians ad Litem, and sometimes even mental health counselors who are involved are in better positions to determine what’s in the child’s best interest than the child him/herself.
The Difficulty of Asking a Child with Whom They Want to Live
If your child is of a mature age and experience level, and if they have the ability and judgment to express themselves well, you may be tempted to ask them with whom they want to live, and further ask them to express this preference to the court, a counselor, or their Guardian ad Litem. While the court may consider a child’s preference, keep in mind that this can be very stressful and emotional for a child and could ultimately harm the child’s relationship with their other parent, or even with you. The decision to ask a child to express their preference regarding which parent they would prefer to live with should be approached delicately, and in most cases should only be done with a trained Guardian ad Litem or a professional child psychologist.
This is especially important to keep in mind in light of the fact that two of the factors courts may consider in determining what’s in a child’s best interest is whether one parent attempts to involve the child(ren) in litigation or alienate the child(ren) from the other parent. Any attempts to procure your child’s preferences directly may be viewed as attempts to coach, manipulate, or unduly persuade your child to voice a desire to live with you. This may, in turn, be used against you in a custody/visitation action.
How Does Divorce Affect Children?
Divorce can be particularly hard for younger children because their brains are not as developed. They can’t comprehend adverse situations quite as well. Instead of being able to logically say that their parents shouldn’t be together anymore for good reasons, they may think they are to blame and start to feel guilty. They might internalize it and believe the divorce is their fault, and if only they had behaved better, their parents would still be together.
This could lead to some self-destructive tendencies. Children may act up in school, get bad grades, stop wanting to socialize, disconnect from parents and other family members and, when they’re older, turn to drugs, alcohol, and other bad habits.
Emotionally, children of divorced parents can become depressed, frustrated, angry, anxious and confused. It’s understandable, since they feel like the rug was just pulled out from underneath them. If they are teens and they’re going through hormonal changes already, the emotional pain can seem more intense.
How to Talk to Your Children About Divorce
Make sure that when you talk to your children about your divorce, you make it age-appropriate. For instance, a 2-year-old won’t really be able to understand what’s going on at first, but as long as you keep up a consistent routine and you’re as nurturing as possible, it should help them cope.
When talking to a child who is in elementary or middle school, ask how they feel and keep up with routines. If you have a teenager, you should keep lines of communication open but give them space to be alone if they need it.
If it’s your turn to see your kids, spend quality time together. You could read them a good book, go see a movie or buy them their favorite food. Don’t talk badly about their other parent, even if you’re mad at them. This can confuse children and cause them to harbor resentment. Presenting a united front with your ex, as hard as it may be, is healthier for your children.
If you are fighting with your ex, do so privately and never in front of your children. When your kids are around, just talk about routine things like drop-off and pickup times. It’s always a good idea to be on time when picking kids up and dropping them off and to respect your ex’s time and privacy.
Working with a Legal Professional During Divorce or Custody Actions
If you are going through a divorce or custody action in South Carolina, who will get custody of your child is no doubt a very important issue to you. At Cate & Brough Law Firm, P.A., we completely understand the stress you are facing, and our experienced and compassionate Family Law Attorneys have worked with many clients in situations similar to yours. When you are facing the unknown, our experienced child custody attorneys are here to advocate for you and help you to ensure that your child’s best interests are protected.
To schedule an initial consultation with our law firm, call us today at (864) 585-4226. You can also write us a message using our online form now.
Cate & Brough, P.A.
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