Custody Change

The courts can always take the child’s wishes into consideration but there is no age that they decide. If your children have stated their desires and you and your ex agree to this change, you could file for modification of custody. If you do not agree to this change then you would need to file for modification and go to court. I suggest that if the children can give valid reasons for wanting to change, sitting down with your ex and discuss it, if you are able. If not, it’s could be suggested that you try it out on a trial basis once school starts back until Christmas break. That way there’s enough time to see if you all can deal with it. A lot of parents who do not have primary physical custody also do not have the “rules” and/or “chores” for the child/children that the custodial parent has so when they are at that parent’s home it often seems easier. This decision should not be based on “Mom makes me clean my room” or “Dad won’t let me watch this TV channel”. I don’t mean that this isn’t a factor but these are things that realistically most children complain about. You could also modify custody if possible to joint physical that way you and your ex share time and the children do not have to choose. I realize that this is not always possible due to where the parents live but it is the best scenario for the children.
My stepsons are the same age. They have joint physical and legal custody with equal time. The boys have both stated at one time or another that they wish to stay with us full time but we have asked them not to make that decision until they turn 13. This gives them a little more years to spend with both parents equally and makes them a little older and better able to make that decision for themselves. We have told them that once they make that decision it is final and there will be no going back and forth. If it changes after that decision it will go back to the way it is now.
Good Luck!

My ex lives in Missouri now. She will definately not agree to it because the child support she receives is the only income she has. Her new husband doesn’t work and they have a new baby together as well. I’m not too sure of why the children don’t want to stay there anymore, but I want to ensure they are happy. They do chores when at my home and it is a very structured environment. Perhaps that’s the difference? I’m not sure. But I know that when I do act I will have to go to court but I want all the info I can get beforehand.

you will have to file for a modification of custody based on significant change in circumstances and be able to cite what the significant changes might be. So you’re saying that the both of you used to live in NC and now she’s moved to Missouri recently and the children want to stay in NC with you and not go to Missouri? They are probably pretty young to have their opinions/desires noted. If she has the children all summer and maybe some of the other vacations then her support amount may not change that much…I would run the calculators on this site and see.

It may be that with the new baby, they do not feel as important in the family. That is a delicate situation and it requires a lot of attention. Talk to your children and see what they say. Ask them if they have mentioned this to your ex. If your ex has moved in the last year that is enough of a reason to modify custody. If you are doing all this over the telephone, I suggest getting a recorder in case this does go to court. If you get the ex to agree to this on a trial basis, you may need that recording to show that there was a specified time frame. Most importantly, do not quit paying child support until this is settled.
Children need guidelines and boundaries and, whether they realize it or not, they want to be with the parent who gives them that structure. Even if they test those boundaries sometimes, they still like to know they are there.
My stepsons rule at their mother’s house. They do what they want, when they want. But they also have to make their own meals (junkfood) since she works 3rd shift and sleeps during the day and basically take care of themselves. At our home, they have bedtime, they have to clean their rooms, and pick up after themselves and other rules like not eating or drinking in their rooms and no putting your shoes on the furniture. BUT they also know that their meals are made and their clothes are washed and other than their small responsibilities they get to be kids. That is not something that is difficult for them to articulate. The oldest has said that he likes being at our house because it’s more settled and he knows what to expect. I’m sure when they are teenagers they will not appreciate this as much but by then they will be old enough to have the basics down, hopefully.

The court will not make a change in custody simply because of the wishes of the children. In order for the court to make a change in custody, you must prove that there has been a substantial change in circumstances that affects the well being of the minor children.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780


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My ex-wife and I have a consent order that gives her physical custody and us both joint legal custody. The order has been in effect for about a year now. I get the children all summer. My children, now ages 8 and 11 but about to be 9 and 12, have both expressed that they wish to stay with me and see their mother during the summer. At what age will the courts consider the children’s wishes and how would I go about reversing the consent order?