Contrary to popular opinion, there is no specific age in which a child can chose to live with one parent over the other.
Countless times I've been asked, "My child gets to 'pick me' when she turns 13, right?"
The answer is, "No. It doesn't work that way."
A child's preference is only ONE FACTOR when the Court determines which custody arrangement is in the best interest of the child.
Generally, there are three types of custody arrangements:
Sole Custody. This is the most commonly seen arrangement where the custodial parent is given physical custody of the child and the noncustodial parent is given visitation. Visitation can be configured in a variety of ways, but often results in alternating weekends, select weeks during the summer, and alternating holidays.
Joint Custody. This is also commonly referred to as "co-parenting". While this implies a 50/50 split in physical custody, it rarely works out that way and typically becomes an instance where the noncustodial parent receives more than the standard visitation awarded in a "sole custody" situation.
Split custody. This custodial arrangement occurs when there are multiple children and the parents "split" the siblings with each parent claiming sole custody of one child. This type of custody split is rarely seen and generally disfavored by the Courts.
DETERMINING CUSTODY:
BEST INTERESTS OF THE CHILD
Our statues and case law instruct that in constructing a custody arrangement, the Court must consider the best interest of the child which may include, but is not limited to consideration of:
The temperament and developmental needs of the child;
The capacity and the disposition of the parents to understand and meet the needs of the child;
The preferences of each child, regardless of the child's age, This factor shall be given the appropriate weight based on their age, experience, maturity, judgment, and ability to express a preference.
The wishes of the parents as to custody;
The past and current interaction and relationship of the child with each parent, the child’s siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child;
The actions of each parent to encourage the continuing parent-child relationship between the child and the other parent, as is appropriate, including compliance with court orders;
The manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute;
Any effort by one parent to disparage the other parent in front of the child;
The ability of each parent to be actively involved in the life of the child;
The child’s adjustment to his or her home, school, and community environments;
The stability of the child’s existing and proposed residences;
The mental and physical health of all individuals involved;
The child’s cultural and spiritual background;
Whether the child or a sibling of the child has been abused or neglected;
Whether one parent has perpetrated domestic violence;
Whether one parent has relocated more than one hundred miles from the child’s primary residence in the past year unless the parent relocated for safety reasons; and
Other factors as the court considers necessary. Often this includes the opinion of daycare providers, therapists, and doctors.
One thing the Court CANNOT do is give a greater preference to one party over the other. The "Tender Years Doctine" which favored giving a mother custody over a father was abolished in the State of South Carolina in 1995. Both mother and father are considered to be equally capable of caring for an infant or young child unless the court is shown otherwise.
The Court is required to consider all of the above factors in determining who gets custody of the minor children. There is never a time where a minor child can unilaterally say that they want to live with one parent and have that be the only factor the Court considers.
I'm going to put a caveat here to say that in the area of child custody, it is ALWAYS better for the parents to put their egos aside and come to an agreement regarding custody.
Your lawyer should tell you their best guess as to what will likely happen if your case ends up in trial. Your lawyer should also help you determine what you really can and cannot live with in terms of settling your divorce and child custody.
Your attorney should be advising you that at trial it will be virtually impossible for the Court to visualize the full picture of your family to determine what avenue is best for the children. In the limited time that a judge has, combined with the sheer number of cases before the Court, and all of the factors the Court must consider, it will be hard for a judge to determine who is the best/worst parent.
Think about it this way, ultimately, you are letting the judge, a complete stranger, determine what is best for your children... in what realm would you EVER let that happen other than in a custody trial?
During the trial your attorney will diligently tell the Court about your positive attributes and consistently bring out the negative qualities of your spouse. Your spouse's attorney will be doing the same to you. At the end of that bitter custody trial, there will be no positive feelings left between the parents. There will be no goodwill left to forge ahead into he daunting task of raising children together, but divorced.
That being said, often times, it becomes impossible to come to an agreement with your spouse. In that case, you'd better hope your lawyer is a skilled litigator. (Hint... I know a good one).
In the end, explaining child custody is like trying to explain the inexplicable. It's like trying to paint the whole picture of your family. Come talk to us about what we think. We will help you negotiate these choppy waters.