Yes, in New York, the courts can consider a child’s preference in a custody decision. However, it is imperative to understand that, like all factors considered by the courts, this is not the only deciding element. In practice, a child’s preference becomes more influential as the child demonstrates maturity and a reasonable and independent explanation for their reasoning.  This is because the court prioritizes the best interests of the child, which is a legal standard used to ensure the health, safety, and development of the child. As such, understanding when a judge will consider the preferences of a child can help you get a better idea of what you can expect in this process.

Can Children Express Preference During Custody Proceedings in New York?

Often, when parents decide to separate or divorce, one of the most contentious issues they face is child custody. If parents cannot agree, a judge will determine the issue. If a couple has older children, they may prefer to live with one parent over the other. However, depending on the child’s maturity, a judge can consider a child’s parental preference when determining parenting time arrangements. While there are no age guidelines, the courts typically weigh the opinions of older children more heavily.

In Suffolk County, these decisions are generally handled in the Family Court, where local judges routinely evaluate the opinions and maturity of children when they are giving their parental preference.

What Factors Do New York Courts Consider in a Custody Decision?

When parents split and cannot agree on how to divide their parenting responsibilities and visitation time, the decision will fall on the judge’s lap. Generally, the court will consider various factors to develop a parenting plan based on the children’s best interests.

Key Factors Judges Consider

  • The age and number of children
  • Each parent’s physical and mental health
  • Each parent’s fitness
  • Each parent’s income and earning capacity
  • Each parent’s willingness to foster a relationship between the child and the other parent
  • Each parent’s living standard (ability to provide a safe and stable environment for a child)
  • Each parent’s ability to provide the child with a consistent routine
  • Any history of neglect, abuse, or domestic violence
  • The children’s educational needs
  • The geographic proximity of the parents’ homes
  • The child’s preference (if of sufficient age)
  • Any other relevant factors

How Much Weight Does a Child’s Preference Carry in New York?

As you can see, the court can consider a child’s parental preference when deciding custody. However, New York law doesn’t explicitly stipulate an age at which a child’s parental preference must be considered. The judge has the discretion to determine whether a child is mature enough to express their parental preference based on independent opinions

When a Child’s Preference Is More Likely to Have Influence

  • Children around 12 or 13 are generally considered more capable of forming a reasoned preference
  • Younger children, like those aged 10 or 11, may be considered if they can demonstrate maturity and understanding of their words
  • The court will consider whether or not the child’s reasoning is logical and not influenced by emotion
  • The judge must also consider that their preference is reflective of the best interest of the child

When the Courts May Give Less Weight to a Child’s Preference

While the court ultimately values the input of children in Suffolk County divorce cases, judges ultimately have discretion as to whether or not they consider this opinion if there are concerns regarding the reliability and motivation of the child.

Situations Where Preference May Be Discounted

  • There is evidence that a parent has coached, pressured, or otherwise influenced the child
  • The child expresses a preference based on leniency, permissiveness, or a lack of rules and structure
  • The preference stems from rebellion rather than a genuine choice
  • The child fails to clearly explicate the reason behind their choice
  • The preferred arrangement may negatively impact the safety and well-being of the child

Understanding the “Best Interests of the Child” Standard in New York

In Suffolk County and across New York, custody decisions are always made in accordance with the “child’s best interests standard.” This requires the court to evaluate all relevant circumstances, not just the preference of the child, to determine the best arrangement for the child’s overall well-being, stability, and development.

Contact Our Dedicated Suffolk County Family Law Firm

If you are facing a custody battle in New York, it’s in your best interest to work with a compassionate attorney from The Law Offices of Susan A. Kassel, P.C., who can help you safeguard your parenting time. Our firm understands how overwhelming and difficult it can be to navigate these matters, which is why we will do everything in our power to help you achieve the best possible outcome. When you need help, our dedicated legal team is here. Contact us today to learn how we can represent you