How Children’s Preferences Factor Into Custody and Visitation Decisions
New York courts making custody and visitation decisions prioritize the best interests of the child, weighing various factors to determine an optimal living arrangement. A common question in custody proceedings is whether a child can choose their which parent to live with. While courts do not give children the absolute right to decide where they will live, the courts do take their preferences into account. However, the child’s wishes are just one factor among several that the court evaluates.
In considering a child’s preference, the court evaluates the reasons behind the child’s choice and its potential impact on their emotional and psychological health. The court also examines each parent’s ability to provide for the child’s needs, the child’s relationship with each parent and the stability of the home environments. The aim is to create a custody arrangement that supports the child’s overall well-being and development.
The child’s preference becomes more influential as they grow older and demonstrate a greater capacity for making reasoned decisions. New York courts do not set a specific age at which a child’s preference becomes decisive. Instead, the court assesses the maturity and understanding of the individual child, considering their age and their emotional and intellectual development, and the rationale behind their preference. Younger children’s preferences might carry less weight.
The court often will appoint an Attorney for the Child (AFC), a licensed New York lawyer who provides a voice for the child in the custody case. Each parent should be represented by an experienced family law or matrimonial attorney.
The AFC’s responsibilities include interviewing the child, understanding their wishes and concerns and advocating for their preferences in court. This attorney ensures that the child’s perspective is presented, even if the child cannot articulate it themselves in a courtroom setting. The AFC’s role is not to act as a guardian ad litem, who would make recommendations based on the child’s best interests, but rather to act strictly as the child’s legal advocate.
The AFC must balance the child’s expressed preferences with the child’s best interests. For instance, if a child’s preference seems to stem from manipulation or misunderstanding of the situation, the AFC might present this context to the court. Conversely, if the child’s preference appears to be well-reasoned and aligns with their best interests, the AFC will strongly advocate for that outcome.
There are rare instances where an AFC may substitute judgment on behalf of their client. This happens only in limited circumstances and is not the norm.
The attorneys at Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP in St. James, New York, understand the importance of developing child custody and visitation arrangements that permit parents to spend significant time with children after divorce. To learn how we can help you, contact us online or call us at 631-360-0400.