How Does a Child’s Preference Affect Custody?

Until a child turns age eighteen the family court can decide that child’s custody.  Once a child turns age eighteen, the court can no longer decide that child’s custody, even if the child is still attending high school. Holcombe v. Kennison, 300 S.C. 479, 388 S.E. 2d 807 (1990) (once child turns age eighteen family court no longer has jurisdiction over custody).

S.C. Code Ann. § 63-15-30 requires the court to consider a child’s preference in awarding custody:

In determining the best interests of the child, the court must consider the child’s reasonable preference for custody. The court shall place weight upon the preference based upon the child’s age, experience, maturity, judgment, and ability to express a preference.

The case law dealing with a child’s preference shows that it is an important, but not necessarily prevailing, factor. A teenage child’s expressed preference to reside with his father was one factor in changing custody in Aiken v. Nelson, 292 S.C. 400, 356 S.E.2d 839, 840-41 (1987). However, in Bolding v. Bolding, 278 S.C. 129, 293 S.E.2d 699 (1982), the Supreme Court reversed a change of custody based on an eleven year old son’s desire to live with his father, finding that this desire alone was not sufficient to show that the change of custody would be in the child’s best interests. In Smith v. Smith, 261 S.C. 81, 198 S.E.2d 271, 274 (1973), the Supreme Court reversed a lower court’s change of custody, stating, “The mere fact that the seven year old child expressed a desire to live with his father did not constitute a change in condition sufficient to warrant a change in custody.” “The child’s preference will be given little weight where the wishes of the child are influenced by the permissive attitude of the preferred parent.” Id. In Payne v. Payne, 382 S.C. 62, 674 S.E.2d 515 (2009), the Court of Appeals affirmed the family court’s transfer of custody of an approximately seven-year old boy from the mother to a father who had been convicted in 1989 of Criminal Sexual Conduct despite the child’s statement that:

“[H]e wanted things to stay the way they were.” The family court acknowledged Joshua’s preference in the final order, but clearly took other factors, such as Mother’s emotional condition and its impact upon Joshua, into consideration in its decision to modify the custody arrangement. Accordingly, we do not believe the family court erred in failing to give Joshua’s preference controlling weight.

In Patel v. Patel, 359 S.C. 515, 599 S.E.2d 114, 120-121 (2004) the thirteen year old daughter desired to live with mother and the eleven year old son expressed no strong preference. Many witnesses testified that the children should not be separated. The court considered the daughter’s preference in awarding custody to mother.  The Supreme Court held that such consideration was not an abuse of discretion.

In Spreeuw v. Barker, 385 S.C. 45, 682 S.E.2d 843 (Ct.App. 2009), a twelve year old daughter’s preference to spend more time with her mother was an accepted basis to alter custody from father to joint physical custody with mother having final decision making authority for both that child and her younger sister.

The court in Moorhead v. Scott, 259 S.C. 580, 193 S.E.2d 510 (1972), upheld a denial of a change in custody request, which was based on the wishes of children aged nine, eleven and twelve to live with their father. In Perry v. Perry, 315 S.C. 373, 433 S.E.2d 911, 912 (Ct.App. 1993), the Court of Appeals affirmed a family court order awarding father custody of the parties’ three children (ages twelve, eight and five at the time of trial), despite evidence that the children wished to live with mother, as there was substantial evidence indicating that father was better able to care for the children.

Absent any countervailing evidence, an older teenager’s preference is almost controlling. In Guinan v. Guinan, 254 S.C. 554, 176 S.E.2d 173, 174 (1970) (citations omitted), the Supreme Court reversed the award of custody to mother of a sixteen year old boy who desired to live with the father with the following analysis:

Ordinarily, the wishes of a child of this boy’s age, intelligence and experience, although probably not controlling, are entitled to great weight in awarding his custody as between estranged parents. The court made no finding of fact tending to offset this important factor in awarding custody, and the record before us is bare of any evidence tending to do so. Absent any evidence tending to establish that the best interest of the boy would be served by awarding his custody to the mother, the court erred in failing to allow him to live with the parent of his choice.

Brown v. Brown, 362 S.C. 85, 606 S.E.2d 785, 790 (Ct.App. 2004) contains an extensive analysis of the case law on child’s preference. In Brown, twin six-year olds and a ten-year old expressed a preference to live with mother. The six-year olds were vague on the reason for their preference. The ten-year old’s preference was based, in part, on a desire to remain in the same neighborhood (which was not going to be possible post-divorce). Under these facts, the Court of Appeals affirmed that the children’s preferences were not entitled to great weight.