Bolding v. Bolding ( 1982 )

Lewis, Chief Justice:

Barry N. Bolding (Father) commenced this action seeking custody of the eleven-year-old son of the parties. Approximately one year earlier, the divorce decree had granted custody of- the son and his seven-year-old sister to Brenda. E. Bolding (Mother). The lower court transferred custody of the son to Father; Mother appeals. We reverse, holding that the trial judge erred in transferring custody when the only change of condition alleged was that the son wished to live with Father so that he would be near old friends and could attend school with them.

In order to justify a change of custody, the party seeking the transfer bears the burden of establishing a material change of conditions substantially affecting the welfare of the child. Lowe v. Bindley, 272 S. C. 143, 249 S. E. (2d) 750 (1978). The significance to be attached to the wishes of the child in a custody dispute depends upon the age of the child and the attendant circumstances. The wishes of a child of any age may be considered under all the circumstances, but the weight given to those wishes must be dominated by what is best for the welfare of the child. Smith v. Smith. 261 S. C. 81, 198 S. E. (2d) 271 (1973).

We hold Father failed in his burden of establishing a change of condition sufficient to warrant a transfer of custody, as the only change alleged or proved involved the wishes of the eleven-year-old child. See Smith v. Smith, supra, (involving a seven-year-old child) and Moorhead v. Scott, 259 S. C. 580, 193 S. E. (2d) 510 (1972) (involving children aged eight, eleven, and twelve).

Reversed.

Littlejohn, Gregory and Harwell, JJ., concur. Ness, J., dissents.