Child Preference as a Basis for a Change of Custody in SC
Change of Custody Case: Child Preference
By M. J. Goodwin
Over the past 23 years, I have heard countless clients state that the primary reason he or she wants to file for a change of custody is that the child wants the change of custody. South Carolina Law does provide for consideration of a child’s preference. Specifically, South Carolina Code of Laws, SECTION 63-15-30, as amended, provides as follows: “Child’s preference. 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.” http://www.scstatehouse.gov/code/t63c015.php
The first question such a litigant typically asks me is: “at what age can the child choose where to live?” The correct legal answer to that question is eighteen (18) years of age. However, for practical purposes, the age can be considerably younger. I advise most clients that living with an unhappy teenager is akin to living with an unhappy grizzly bear. Many parents simply let the teenage child move to the other parent’s home, knowing that he or she will see the child as much or more than they see the child before the change. However, if a parent is financially dependent on the child support, as many are, the change of custody based on the child’s wishes alone may be resisted. In such situations, one must be able to prove that the change of custody is in the best interest of the minor child.
Filing on a child’s wish alone is risky business. The Plaintiff risks not being able to prove the substantial change of circumstances necessary for a change of custody to be ordered. If the proof fails, attorney fees are likely to be assessed against the Plaintiff. So it is important, in my opinion, to have a little more than the child’s preference in filing for a change of custody. Some possible change of custody issues include (but are not limited to ):
*the custodial parent has a history of moving frequently or is in some way unstable in his or her home life;
*the custodial parent’s lifestyle choices are questionable and one can prove that the custodial parent is using drugs; or using excessive alcohol; or violating restraining orders; or is involved an abusive relationship; or has unsavory persons around the child.
*the child is not performing to his or her potential in school under the custodial parent’s supervision and care;
*the child is not properly supervised and has engaged in dangerous or potentially criminal behavior.
In all Family Court matters, it is crucial to have competent, experienced legal counsel. It is folly to go to Family Court without a lawyer. You can reach me by email at firstname.lastname@example.org I can typically respond to most emails within 12-18 hours. If you prefer, you can call my office at 864-375-0909.