Editor’s Note: Lauren Taylor Arnette is a member of the Family Law and Litigation Practice Groups at Ward and Smith, P.A.
Custody cases are often the most emotionally charged and difficult legal cases to resolve. In North Carolina, a court’s focus in custody issues must be determining what result will serve “the best interest” of the minor child. In fact, case law in North Carolina has called the best interest of the minor child the “polar star” that must guide a court in making a custody determination.
At What Age Can A Child Decide Where to Live?
In many cases, a client who is seeking custody, whether the client is a biological parent, adoptive parent, grandparent, or other interested person, wants to know if the child can tell the judge who they want to live with or at what age the child can decide whether or not they want to live with, or visit, the other party seeking custody. There is a lot of misinformation on this topic, including many misconceptions from “at 16 it is up to the child to decide who they will live with” to “the child can just talk to the judge and the judge has to do what the child wants.”
Unlike some other states, North Carolina does not have a bright line test based on the age of a child to determine whether the child may testify as to the child’s wishes relevant to the custody hearing. There is also no magic age after which a child gets to decide custodial matters.
Instead, North Carolina courts are required to determine whether a child is “competent” to testify in determining whether the child’s wishes will be considered in a custodial action. In making this determination, the court must consider whether the child is of a suitable age and discretion with an emphasis on whether the child has the ability to understand the difference between the truth and a lie.
If the court determines that the child is of a suitable age and discretion, the court must consider the living preferences of the child, but the court has discretion as to what weight to give to the testimony and wishes of the child. In short, even if a child is competent to testify and does testify about living preferences in a custody action, a North Carolina court is not required to determine custody in accordance with the wishes or preferences of the child.
Will A Child Be Able to Tell the Judge Privately Where He or She Wants Live?
Once a child is determined to be a competent witness, the contesting parties, attorneys, and judge must consider how the testimony of the child should be given to the court. The trial court must consider the sometimes competing interests between the right of the parties to confront and cross-examine any witness in open and recorded proceedings and the trauma that can result to a child as a result of being required to testify in open court in front of the parties, at least one of whom may not like what the child has to say.
One party may request that the child’s testimony be taken outside of the courtroom in a location such as the judge’s chambers but the other party may object.
There is no standard procedure for taking a child’s testimony outside of the courtroom and there are several variables North Carolina courts consider in determining how this testimony will be given:
- Should the testimony of the child be recorded;
- Should the attorneys for each party be present; and,
- Should the attorneys for each party be given an opportunity to question the child if the testimony is given outside of the courtroom;
However, without the consent of all parties to take the testimony of the child outside of the courtroom, the court may not question the child privately. In short, if one party objects to the court conferring with the child outside of the presence of the parties and their counsel, the court may not take the testimony of the child except in open court and with the opportunity for all parties to cross-examine the child. At this crossroad, the party must determine whether the child will testify in open court, in front of the other party or parties, and be subject to cross-examination.
Can I Testify About The Child’s Wishes?
In general, pursuant to the “hearsay rule,” no out-of-court statements of a child may be offered into evidence by any other witness or party. There are a few limited exceptions to this rule where the law presumes that the lack of opportunity or motivation to tell a lie is so strong that the statement is likely true and reliable:
- A child’s excited utterance;
- A statement of the child’s then existing mental, emotional, or physical condition;
- Statements made for the purpose of medical diagnosis or treatment; and,
- The testimony of a Guardian ad Litem
Of these limited situations, the only out-of-court statements of the child that can be offered for the purpose of presenting the child’s custodial preferences to the court is the testimony or report of a Guardian ad Litem (“GAL”).
North Carolina requires the appointment of a GAL in cases where there are allegations of abuse or neglect in a petition filed by the Department of Social Services. In those cases, the responsibility of the GAL is to provide “a voice for the child” by investigating the details, allegations, and contentions made in the case, talking with the child, monitoring the progress of the case, and giving a recommendation to the court through reports as to what is in the best interest of the minor child. In these cases, the GAL is not required to be an attorney and is often a volunteer who is trained before being qualified for appointment as a GAL by the North Carolina court system.
In some states, the appointment of a GAL is also required in any case involving custody of a minor child. North Carolina is not one of those states. Chapter 50 of the North Carolina General Statutes, which governs custodial cases between private individuals where the Department of Social Services has not filed a petition on behalf of the minor child, does not contain any requirement or standard that a GAL be appointed to assist the court in determining the best interest of the minor child. In fact, Chapter 50 does not provide any specific provision for the request of a GAL in such cases.
While there is no right to the appointment of a GAL in these cases, there certainly is an increasing trend to request the appointment of a GAL. The parties, or sometimes just the requesting party, will be responsible for paying all fees associated with the GAL. The expectation is that, unless defined otherwise by the parties, the GAL’s responsibilities will be the same as in cases involving the Department of Social Services.
There are ways to have the voice of a child or children heard in custodial matters. However, these ways may come with a cost to the child if it means a child will be required to testify in open court in front of two or more warring parties. Any participant, whether litigant, attorney, judge or Guardian Ad Litem, should have as the paramount consideration the best interest of the child, and that consideration should guide all decisions in any custody case.
© 2015 Ward and Smith, P.A.
Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. Lauren Taylor Arnette practices in the Family Law and Litigation Practice Groups, where she represents clients in family-law related matters. Comments or questions may be sent to LTA@wardandsmith.com.
This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.