How Does the Child’s Preference Affect Custody Proceedings?

When parents divorce, asking children to choose which parent they want to live with can be traumatic for all involved. In some cases, however, children are sufficiently mature to express a reasoned preference. In such cases, the child’s preference can be an important factor in shaping the custody arrangement. 

New York courts determine child custody based on a number of factors intended to protect the interests of the child. A child’s preference is not binding on the court, but judges have discretion to consider it. They often give it significant weight if the child can articulate cogent reasons for the choice. Issues to consider when a child expresses a custody preference include: 

• The older a child is, the more likely a judge is to give weight to the child’s opinion. The judge, however, is likely to independently assess the child’s maturity, regardless of age. 

• Judges are vigilant for signs that a parent has tried to influence the child’s preference. Coached testimony from the child will not only be disregarded, but also may work against the parent who pressured the child. 

• Judges are not required to accept a child’s preference, even if the child is mature. In fact, giving undue weight to a child’s preference in custody proceedings can be grounds for reversal on appeal. 

It is important to listen to your children during your divorce, but parents should never pressure their children to make choices about custody and visitation. As seasoned family law attorneys, Bryan L. Salamone and his team of associates have experience working with minor children and presenting their preferences to the court when appropriate.