Can a Child Help Determine Custody?

Even in amicable divorces, decisions related to child custody and visitation can be complex and fraught with emotion. This is true for the parents and their children.

When parents decide to end their marriage, it is understandable that their children will have many questions. They will want to know how the divorce will affect them. Depending on their ages, their questions can range from who will tuck them in at night or whether they will have to change schools. Some children may come right out and say they want to live with a specific parent.

The child does not make the decision on where they live, but the court may consider their concerns when ruling on custody matters. Call the Law Office of Dennis R. Vetrano, Jr., LLC at (845) 605-4330 with your questions about child custody matters.

Court-Ordered Custody Decisions

If child custody decisions cannot be negotiated between the parents, the matter will be litigated and the decision in the hands of a judge. Testifying in open court is stressful. Judges will do their best to shield children from their parent’s disputes and spare the child that stress. The judge will consider any factor relevant to the child’s well-being.

A judge will look at the total picture when determining physical and legal custody:

  • The parents’ wishes
  • The child’s wishes
  • The parents’ abilities to provide stability for the child
  • The child’s relationship with extended family members
  • Each parent’s existing relationship with the child

The older the child, a judge will assume they have a certain maturity level and give more weight to their preference. New York law doesn’t specify an age, but most judges give the wishes of children 13 years old or older more consideration.

Judges do understand, though, that the reason a child may want to live with a certain parent has nothing to do with their best interests. A child may want to go live with one parent because they are more lenient in how much TV they watch. One parent might allow a sleepover during the week. Maybe one parent doesn't require them to complete chores. A parent might not check homework.

The court also knows that children do not have all the facts, financial or otherwise, about their parents and the impending divorce.

When the judge deems it necessary, the court has several options to hear from the child without their testimony in open court.

  • Appoint a Custody Evaluator. A custody evaluator meets with the parents individually. The evaluator will also meet with the children without either parent present. They may also interview other parties such as teachers, friends, and extended family members. The evaluator’s recommendations are shared with the judge presiding over the case. Their report is also given to both parents.
  • Appoint a Law Guardian. The law guardian is an advocate for the child. The guardian (called guardian ad litem in some states) will meet with the child to better understand their wishes, needs, and concerns. The guardian is usually a lawyer experienced in child custody matters. They attend every court appearance to represent the best interests of the child.
  • Conduct an In-Camera Interview. In-camera interviews are conducted by the judge. While the sessions are called “in camera,” a camera may not be used. Parents are not present, but a court reporter will create a transcript of what happens. The transcript is created in case there is an appeal to the judge’s custody decision. What is discussed in the interview is confidential and isn’t shared with parents or attorneys.

Determining Custody Outside the Courtroom

Keeping your family’s custody decisions out of the courtroom is preferable when possible. When both parents agree on what’s in the child’s best interests, the parents can create a parenting plan that outlines primary custody and visitation. Unless there are extenuating circumstances, the court will generally approve any negotiated plan.

Like judges, parents should consider the feelings of their children. The final decision, though, should be that of the parents. When parents are married, there are many times that they do not give in to the whims of their children because they know what is best for them. The same principle applies after a split. Parents are still parents.

When parents aren’t coming to an agreement about custody but want to keep the matter out of the courtroom, they should consider using mediation to help sort out their differences.

Custody Modifications Requested by Children

Once a divorce is finalized, there can be needed changes in the future to the existing child custody agreement. A child can talk to their parents about their changing needs. For example, if a 16-year-old gets a part-time job after school, they may request primary custody be at the house closest to their work. Agreements can always be renegotiated when they no longer serve their purpose. A newly negotiated agreement can be submitted to the court for implementation.

Modifications can also be litigated. This petition must be started by a parent, not a child. Like original custody decisions, the judge will consider what is in the best interests of the child. The judge generally also requires a significant change in circumstance to justify a change to the existing custody agreement.

Substantial reasons in the eyes of the court include the following:

  • Job Loss
  • Need to Relocate
  • Medical Issues
  • Parent Becomes Unfit

The judge will consider all the circumstances of the child’s parents and unique facts before modification of a custody order.

Legal Guidance for Child Custody Issues

Our years of experience, coupled with extensive litigation experience, give us insight into effectively representing our clients. We treat our clients as individuals and their cases as unique as they are. We approach family law cases with pragmatism and compassion.

We work hard to facilitate a custody agreement that works for all parties involved, putting the children’s best interests first. Schedule a free one-on-one consultation to discuss your case. Contact us online or call (845) 605-4330.

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