Can Children Express Preference in New York Custody Proceedings?

Learn about whether children can express a preference in New York custody proceedings.

By , Attorney · Brigham Young University J. Reuben Clark Law School
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A child's preference for one parent over the other won't necessarily doom the less-favored parent's custody case. While a judge can consider a child's preference in custody decisions, ultimately a child's best interests will control.

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

New York Child Custody Basics

Parents can work out their own custody agreements together or with a mediator's help. If you and your spouse are willing to compromise, deciding custody can be a rather painless process.

More often, divorcing or separating parents can't agree on custody and a judge will have to decide both physical and legal custody at a custody trial based on the child's best interests.

Physical Custody

"Physical custody" is sometimes called "residential custody" and determines where a child lives. A parent with primary physical custody lives with the child the majority of the time. Parents can share physical custody (called "joint custody") or one parent might have sole physical custody. The parent with majority physical custody is called the "custodial parent" and the other parent is referred to as the "noncustodial parent."

Even when one parent doesn't have physical custody of a child, the noncustodial parent is usually entitled to regular and frequent visits. Sometimes this means a parent with a history of domestic violence or substance abuse will have supervised visits with the child, until a judge can be sure the child is safe in that parent's care.

Legal Custody

"Legal custody" refers to a parent's right to make major decisions on a child's behalf. A parent with legal custody can decide where a child attends school, if the child should undergo a major medical procedure, or whether the child should be raised in a certain religious faith. Often, it's in a child's best interests for parents to share legal custody.

Understanding a Child's Best Interests in New York

Judges have tremendous latitude when determining what's in a child's best interests in New York. A judge will consider not only a child's best interests, but the circumstances of the child's parents and the unique facts of the case.

When deciding custody in New York, a judge can evaluate any factor he or she deems relevant to a child's well-being. Specifically, a judge might examine the child's and parents' physical and mental health, each parent's ability to provide the child with stability, and the child's relationship with extended family members.

A child's preference for custody as well as the parents' wishes for custody are also relevant factors. A will also need to decide whether joint custody is appropriate. In deciding joint custody, a judge will look at the parents' working relationship and each parent's willingness to foster a relationship between the child and the other parent. See N.Y. Dom. Rel. L. § 240 (2020).

A child's safety in a parent's care is a crucial custody factor. Either parent's history of domestic violence will impact a custody decision and may lead to that parent having supervised visits.

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.

Can a Child Choose Their Guardian in New York?

While a child express a custody preference, a judge isn't bound by a child's wishes. A child's parental preference will be taken into consideration at any age, but an older, more mature child's preference is given more weight in custody decisions. 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 each expressed their desire to live in a joint custody situation where they could spend ample time with both parents. A judge concluded 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 to form a rational opinion on custody.

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.

Older children's wishes are given more weight in New York custody decisions. Ultimately, a child's combined needs, preferences, and maturity will determine the outcome of your custody case.

At What Age Can a Child Refuse Visitation in New York?

Visitation and custody arrangements are designed with a child's interests in mind. Parents are obligated to follow a custody order's terms until a child reaches 18 or is emancipated. A custodial parent can face legal consequences for preventing visits between a child and the noncustodial parent.

A child who refuses visitation puts a parent in a perilous situation. Obviously, it's much harder for a parent to force a teenager to attend visits than it is to get a toddler to a visit. A judge will require a parent to ensure that visits between a young child and the other parent take place. However, there's not much a judge or parent can do if a 17 year-old is refusing visits.

Each parent's responsibility is to allow and encourage visits between the child and the other parent. A judge won't threaten or sanction a teenager for refusing visits, but might strongly encourage the child to build a relationship with both parents.

When Can a Child Speak for Themselves in Court?

Typically, unless it's an emergency, judges try to avoid forcing children to testify in open court because it's stressful and puts children in the middle of custody disputes. New York judges try to keep children out of their parents' custody disputes. Nevertheless, even young children have a voice in most custody cases.

A judge can appoint a custody evaluator to assess a child's needs and wishes. Also, a judge may appoint a law guardian (also called a "guardian ad litem" in some states) to meet with a child and determine his or her needs and custody wishes. A law guardian 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, but the parents' attorneys are usually present. 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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