Question:  I am the custodial parent and have been divorced for almost two years. My 15 year old son wants to stay with his father who doesn't have a good record due to drinking and a DUI.  His father also works nights and is never home. He is letting our son do what ever he wants and as a result our son is falling behind in school work. Is it possible that my son's opinion on this matter could get custody overturned? He gets to do whatever he wants when he goes to his fathers which is why he wants to go there.

Answer:
I cannot answer your questions specifically to the laws of South Carolina as I am not licensed in that State. It is possible that there is a specific statute in your State that provides for an age for a child to determine or provide impute into the custody decision. When there is a custody dispute in my State, the court appoints a Guardian ad Litem to determine what the best interests of the child are as to custody and placement.  Generally, a child can testify when they are of sufficient maturity to understand and take the oath to testify truthfully. However, the child's wishes are only one factor in my jurisdiction that the Guardian ad Litem and Judge use to determine the best interest of the child and the custody arrangements.

Usually by 12 years old a child can testify, but the court will not give much weight to his choice. As the child gets older his wishes carry more weight. By fifteen or sixteen, if the child is of general maturity and has logical reasons for changing the custody, the court will often abide by the child's wishes.

You should contact an attorney licensed in South Carolina to inquire as to whether a statue defines when a child can decide and the standard the courts apply in determining custody and placement.

Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.