At what age is a child able to make the decision or have some input of who they want to live with? I have a step-son that is 12 and would like to come stay with his father now. How much input would he have?


There is no set age in NC. I child can never say alone who he wants to stay with. The child can ask a judge to stay with one parent or the other, but it is still the judge’s decision and the judge doesn’t necessarily have to listen to the child. The judge will do what is in the best interest of the child. I believe a judge isn’t just going to give a child ‘free reign’ over when they want to see a parent.


There are several things that this can depend on too. Has your spouse brought it to the ex’s attention that this is what the child wants? If the child is old enough to give you valid reasons, he should be able to tell his mother also.
Possibly suggest a “trial” time frame like 6 months to see if the child really wants this change to become legal. If after the 6 months, the change is still wanted, the child may not have to be involved with court process, if the parents agree to modify custody.

It also depends on their current custody agreement/order. If they have joint physical and legal custody then the courts depend on the parents to sort out the details of time/visitations. If one parent normally has the child more and the desire is to change it, the actual custody will not change.

Another thing that may affect is what the reason is behind this. I mean if a parent files to modify custody because of valid reasons then it will hold more weight than if they file because the child just wants to switch. The courts do not like to change a child’s routine without valid reason. That being said…the child chooses to live with the other parent…maybe their mom/dad has a new family or is planning to move would be a valid reason over mom/dad makes me clean my room and wont let me watch R rated movies.

If your spouse discusses it with the ex, he should make sure that the ex understands that this is NOT about them but about the child.


Technically a child (under 18) is never allowed to make the decision of which parent they want to live with, however a judge will consider the child’s wishes together with all other evidence related to what is in his best interests. Judges, if they decide it is prudent to meet with the child, do so in private with neither parent, nor their parents present.
If you have a current order on child custody in place you will need to prove that a substantial change in circumstances affecting your son’s best interests has occurred such that a change in custody is necessary. Your son’s wishes to live with you will not, standing alone, be enough to prove a substantial change has occurred. You will need to allege that other events have occurred that warrant the need for a change in the current arrangement.


In our court order it states that my husband has joint legal custody and the mom has primary physcial custody and my husband has secondary physical custody with visitation for summer and half of the holidays. The mom of 12 years old would not agree to anything unless court ordered. However, the circumstances in his situation has changed since court in June of 07. He is not doing well in school for the last couple of years and has got worse this year. He is struggling to pass in a couple subjects that he will need to pass his grade. He has already missed 12 days of 20 that you can miss…Mom takes to dr when sick but never makes sure child takes meds…meds are left in clothes bag until next visit with father. Once took child was out of school on Monday and Tuesday of not feeling well finally takes to dr on Wednesday but send back to school on thursday and friday and finally gets meds filled on saturday. Mom don’t make sure he does homework and don’t make the attempts to get child in program in school to help. His mom is not the type to let him come on a trial basis to our house to see if that is what he wants or would be better for him right now. During Christmas vacation - stayed a week at our house with no meds - had been recently diagnosed with allergies and GERD. Mom does not make sure he takes his meds and most the time he only takes them when he spends time with dad at our house. Moms attention is primarly focused on her older child that is autistic right now with his problems and 12 year old seems to get what is left…which don’t seem like much. Not sure if choice to live with father is because he gets more parenting attention from us. He has told us that he would like to come live with us since last summer. I believe he sees that more of his needs are met from dad and me and knows we will see to it that he would do better in school and would involve him in things that will help him.


If the child’s mother has stopped caring for him properly a motion to modify custody can be filed on this basis.


Thanks Ms. Clarey - Is the motion to modify custody something that we could start on our own or something a lawyer will need to do. Right now we don’t have the extra funds to hire a lawyer.


You may file any action pro se (without an attorney). You may file the motion on your own, but I do recommend that you at least consult with an attorney prior to doing so.