A child doesn’t get a say regarding whether or not his or her parents will get divorced. While children may want their mother and father to stay together, they don’t get a vote in the decision to end a marriage.
But, when it comes to where the child will live and which parent will get primary custody, , they do have some input. Whether their opinion has any impact on the ultimate decisions regarding custody or whether the child’s preference will honored is another matter.
Children’s Preference Just One of Many Factors
New York judges, like their colleagues in every other state, make custody determinations based on what is in the “best interest of the child.” Obviously, deciding what is in a given child’s best interest can be a daunting task and judges will evaluate a number of factors deciding a custody dispute..
If a child has expressed a preference as to which parent they would like to live with, a judge may take it into consideration as one of the factors guiding their determination as to custody. As one New York court put it:
“Although a child's preferences are not determinative of how a court should decide questions of custody and visitation, they may be instructive as to what is in the child's best interests.” Matter of Cisse v Graham.
How much consideration the child’s preference is given will depend primarily on the age of the child, whether other factors weigh heavily against the child’s preference, and whether the child’s stated preference is based on reasons that run counter to their best interests.
Older Child, Bigger Impact
In New York, there is no set age when a child is deemed old enough to express a meaningful preference for one parent or the other. Instead, judges typically assess the children’s preferences on a case-by-case basis, taking into consideration their maturity and intelligence.
Naturally, an older or more mature child’s opinion will be given more weight than a younger child’s. No matter how old the child, a judge taking their view into consideration will do some digging to get a sense of how and why the child came to their decision.
A judge may interview the child in chambers to ensure that one parent did not influence the child through alienation, coercion or undue pressure; the judge will want to ensure that the child’s opinion was well reasoned and the result of free will. In addition, the court will also consider whether the choice was based on factors that, while attractive to the child, are against their best interest, such as the lack of supervision, boundaries, or discipline with the preferred parent.
As with all matters relating to children during a divorce, parents need to be mindful of how they conduct themselves when it comes to influencing their child’s preference on custody issues and remember that the same principle that guides New York judges – their child’s best interest – should guide them as well.
If you have questions or concerns regarding child custody or any matters relating to divorce, please give us a call at call us at (212) 683-9551 of fill out our online form to arrange for a consultation. We look forward to assisting you.
