Can Children Express Preference in New York Custody Proceedings?

An overview of the effects of a child’s preference on custody in New York.

A child’s custodial preference for parent A won’t necessarily doom parent B's case. While a judge can consider a child’s parental inclinations, a child’s preference will only be granted if it’s in his or her best interests.

This article provides an overview of the impact of a child’s preference on custody proceedings in New York. If you have questions after reading this article, please contact a local family law attorney for advice.

Child Custody Basics in New York

Complex custody matters can become relatively simple when parents agree. However, in cases where parents can’t agree, a judge will look at both parents' circumstances to determine a child’s best interests.

A judge has tremendous latitude when deciphering what’s in a child’s best interests. A court can consider any factor it deems relevant to a child’s well being. However, the following factors are evaluated in most custody cases, including:

  • each parent’s custody preference
  • the child’s custody preference, if the child is sufficiently mature
  • the child’s emotional and physical health
  • each parent’s emotional and physical health
  • each parent’s ability to care for and provide stability for the child
  • each parent’s willingness to encourage the child to maintain a strong relationship with the other parent
  • the child’s adjustment to home, school and community and the potential effects of any change, and
  • each parent’s history of domestic violence, if any.

A child’s safety in a parent’s care is a crucial custody factor. When possible, siblings are kept together. However, each child’s needs are evaluated individually and in some instances, a judge may decide that splitting up siblings is in each child’s best interests. For more information about custody decisions in New York, see  Child Custody in New York: The Best Interests of the Child.

When Will the Court Consider a Child’s Preference?

A child’s parental preferences are important at any age, but when a child reaches 13, his or her wishes are given more weight. Still, a younger child’s preferences can be considered, and a court will evaluate a child’s age and maturity in each case. Typically, courts will place more significance on the preferences of children who are able to make independent decisions, because younger, immature children might be more easily manipulated by parents to express certain preferences.

For instance, in one New York case a 5 year-old and 7 year-old desired to live with both parents. The court decided that the children shared a love for each parent and that both parents were fit and proper custodians. However, the children’s wishes played no role in the court’s custody decision because the girls were too young and childish to form a rational opinion on custody.

In another case, an 11 year-old’s wishes to change custody were disregarded. The court decided that the child’s opinion was based more on a desire to live with her sister than any real parental preference. Ultimately, the court decided the girl was too immature to make an intelligent custodial choice.

Finally, in another New York case, a judge granted the custodial wishes of 16 year-old and 10 year-old siblings. Both children wanted to live with their father. The children’s preferences were considered in addition to other factors, including the children’s desire to stay together, the father’s work schedule, and psychiatric reports. The court determined that the children’s desires to live with their father were in line with their best interests.

A child’s custodial preferences usually give some clue of what’s in his or her best interests. Nevertheless, a child’s age and emotional maturity will impact how much consideration is given to those preferences. Naturally, the preferences of an older, more mature child are given more weight. A court will also look for signs that a child has been coaxed to testify a certain way. If there has been any coaxing or parental pressure to state a certain preference, a judge may not place much weight on the child's wishes.

Will My Child Have to Testify in Open Court?

A child typically won’t testify in open court, except in emergencies. Children can be easily traumatized by their parents’ custody disputes. Thus, judges generally don’t force children to take the witness stand.

Nevertheless, even young children have a voice in most custody cases. A judge may appoint a law guardian to meet with a child and determine his or her needs and custody wishes. The law guardian, also called a guardian ad litem in some states, is appointed to serve a child’s best interests. He or she meets with a child to discuss a child’s needs and wishes and ultimately, serves as the child’s voice at trial.

In addition, a judge can conduct an  "in camera"  interview with a child, even without permission from the child’s parents. Parents can’t attend  in camera  interviews. Moreover, it’s up to a judge whether the parents’ attorneys are allowed to attend the interview. A court reporter will record the interview and create a transcript to use if the case is appealed.

If you have additional questions about the effects of children’s preferences on custody proceedings in New York,  contact a local family law attorney for advice.

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