How a Child’s Preference Affects Custody

A child’s preference for living with a parent can affect custody decisions in many states, including New York. However, while most judges will consider a stated preference, they are still obligated to rule in a way that protects a child’s best interest.

Judges have a great deal of leeway when they make custody decisions. Among the factors they may consider are:

  • Custody preferences of each parent
  • Child’s custody preference, but only if they are old enough to fully comprehend the implications of their choice
  • State of a parent and/or child’s physical and emotional health
  • Perceived stability and resources offered by each parent
  • Potential impact on home and social life, including school and community participation
  • Whether or not parents desire to help sustain a relationship with the other parent
  • History of domestic violence, if applicable

Although all of these issues are generally considered, the safety of the child is of primary importance in a custody decision.

What’s more, while the desire of the child is always taken into account, the older a child is the greater consideration a preference is given. If a child is 13 years of age or older, their preference is given greater weight since they are considered to be more independent and less likely to be manipulated in their choice. Additionally, siblings are typically kept together, although a judge may separate them if he or she believes it to be in a child’s best interest.

In most cases, children are not compelled to testify in court about their desires to live with a particular parent. Sometimes a law guardian is appointed to interview the child and identify his or her needs and desires, or an “in camera” interview is conducted which records the interview that is later transcribed. 

If you need to address tough child custody issues as part of your divorce, contact the trusted Long Island family law attorneys at Bryan L. Salamone & Associates.

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