If you have gone through the custody process in New York, you know that it can be complicated, and having to follow a custody order you do not agree with is difficult.
Many parents mistakenly believe that once their child reaches a certain age, the child can tell a court which parent they want to live with and the court will make or change a custody order based on that. This is a somewhat false belief.
New York courts make custody decisions based on what they determine to be in the best interest of the child. They decide this using a set of factors and weigh each factor in favor of one parent or the other.
Your child’s preference is a factor
One of these factors is what the child wants. However, the child’s age is considered. A teenager is likely going to be better able to understand what they want and communicate it to a court versus a toddler.
Another misconception is that there is a set age at which your child’s preferences are the deciding factor. Many people believe that age is 12.
This is not true. The custody factors do not state any age at which the child can decide which parent to live with. However, the older the child, the more seriously the court will take their wishes.
Additional custody factors
Other factors besides what the child wants include each parent’s mental and physical health, the home environment of each parent, work schedules and parenting abilities.
Additionally, special circumstances are considered, such as if either parent has a history of domestic violence or substance abuse and if the child has any special needs.
No factor is more important than the other
The important thing to remember is that a court considers all factors equally. This means even if your child express a clear desire to live only with you, there may be other factors that support a different arrangement.
The bottom line is that a custody decision is never truly up to the child, but that does not mean your child’s preference should be completely disregarded.
Does my child have to testify?
If you want your child’s wishes to be considered, your child must testify. You cannot testify on behalf of your child and tell the judge that they want to live with you. The judge must hear it from the child themselves.
The idea of testifying in court causes many children stress and anxiety. Courts recognize this, and if a child’s testimony is needed, the judge may interview the child in the privacy of their chambers.
Can I be there if my child testifies?
Attorneys can usually be present for the interview, but parents cannot be. The court wants to make sure the child is not being influenced or intimidated by one parent and there is a greater likelihood of this if that parent is in the room while the child testifies.
Knowing that the decision is not entirely up to your child, you could be hesitant to have your child testify. This is understandable and it is usually healthier for children to be kept out of adult court proceedings.
Alternatively, there are some situations where a child’s testimony is crucial to the custody decision.