What Role Does a Child’s Preference Play in Custody Determinations?

Child Clinging to Father Showing Preference

When parents with minor children get divorced, there might be differing opinions about how to handle custody and visitation arrangements. Sometimes, the parties cannot bridge the gap between them, so the issue must be resolved in court. During litigation, outsiders such as custody evaluators could be brought in to provide their view. But what about the children themselves? What effect does their preference have on the outcome of a child custody proceeding?

If you’re a New York mother or father heading toward divorce whose child is old enough to express their opinion on a parenting plan, there are some things you should keep in mind:

  • A child’s preference is not binding — Courts will consider the custody and visitation preferences of a minor who is of sufficient age and maturity, but they do not have to honor them. There are a variety of reasons why it may be in the child’s best interests to go against their wishes. Some youths might want to live in a particular home because the parent there does not provide proper supervision or discipline. In other cases, the child might not appreciate the advantages that one location has over the other in terms of health, safety and educational opportunities.
  • Parental lobbying could backfire — Judges can use any information they believe is pertinent when making a custody determination. The parents’ behavior during the legal proceeding is one factor that could have a major effect if the judge suspects something improper. Attempting to sway a son or daughter to express a certain preference could backfire on a parent. Should the judge believe that one party is pressuring their child through inducements or threats, the result could be a decision that favors the other parent.
  • Live court testimony is not favored for children — Dramatic testimony where a child takes the stand in a divorce trial to say which parent they’d like to live with is best left to movies and TV. Courts are not inclined to impose that type of stress on a young person. It is much more likely that a custody evaluator or guardian ad litem will be used to speak on the child’s preference and best interests. If the judge needs to speak with a minor directly, they will probably do so privately in their chambers. This is sometimes referred to an in camera

Like each child, each child custody matter is unique. Whenever possible, you and your co-parent should work to develop a framework that respects your child’s preferences but does not force them into making a difficult choice on their own.

As Long Island’s divorce leader, Bryan L. Salamone & Associates, P.C. provides comprehensive family law counsel to New York parents. Regardless of the specific circumstances, we pursue creative solutions to help children thrive after a difficult experience. For an appointment regarding your options, please call 1.631.479.3839 or contact us online.

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