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Matrimonial and Family Law Blog

Monday, January 29, 2018

When Can a Child Choose Which Parent to Live With?

Children often would prefer to live with one parent rather than the other when the parents do not live together due to separation, divorce, or having never married. Kids frequently want to know if there is a magical age at which they get to walk into court and choose the parent with whom they will live. An experienced New York child custody lawyer can best explain the process involved in letting a child choose which parent to live with.

Custody choices are not that simple. Judges make the custody decisions in New York, and they must make a finding that the custody plan is in the best interests of the child. Even if the parents reach an agreement about custody, the judge must approve the terms of the agreement. A judge may allow a child to give input about the child’s preferences, but the child does not make the final call. The judge will consider the wishes of the child and the wishes of the parents, as well as many other factors, when awarding custody of the child.

Reasons Some Judges Hesitate to Have Children Testify on Custody Issues

Although children are allowed to express their preferences as to the parent who will have physical custody of them, judges can be reticent about this practice. The judge might feel that the potential damage to the child’s relationship with the other parent outweighs the value of the child’s testimony.

Judges do care about the child’s wishes, but they balance that concern with the issue of avoiding harm to the child and her parental relationships. When a child goes into court and takes the witness stand to testify against one parent, the child can suffer psychological trauma. Court is intimidating and stressful for adults, let alone for children. And then to take the oath and testify in a public setting about highly personal matters can harm the child psychologically.

Sometimes a judge will ask the lawyers privately if the child has expressed a preference as to a parent for custody. If the lawyers disagree as to the child’s wishes, the judge can appoint a third lawyer to represent and speak for the child. The child would not necessarily voice his opinion in court, but his advocate would convey his wishes to the tribunal. A less expensive option is for the judge to take the child and the parents’ lawyers into the judge’s chambers to ask the child his wishes. Doing this avoids the child having to testify in front of his parents.

Even Judges Have Limits

When the child turns 18, the judge can no longer dictate where the child will live, even though child support can continue until age 21. The child could, theoretically, yo-yo from one parent to the other at will, as long as they allowed him to do so. Under the age of 18, however, a change in custody requires court approval. If a child who is younger than 18 refuses to live with the parent to whom the court awarded custody, and moves in with the other parent, the court can force the child to move back in with the parent with court-approved custody.

Child custody is far more complicated than most people realize. If you are facing a custody issue in your family, contact us today to set up a free consultation to discuss your child custody options.


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