­­­­Can a Child Choose Who to Live with In a New York Custody Case?

At what age can a child decide which parent to live with in New York?

In New York State, like in many other jurisdictions, child custody determinations are made with the best interests of the child as the primary consideration. The child’s preference is just one of several factors that the court may take into account when making a custody determination. However, it’s important to note that a child’s preference is not the sole or even the most important factor in these decisions.  Here’s how a court typically weighs a child’s opinion in custody determinations:

• Child’s Age and Maturity: The child’s age and maturity are critical factors. Older and more mature children are often given more weight when expressing their preferences because they are presumed to have a better understanding of their own needs and interests. Younger children’s preferences may be considered, but they are less likely to have a significant impact on the court’s decision.  The Appellate Division has held “The express wishes of the child are entitled to great weight where the child’s age and maturity make his or her input particularly meaningful.”
• Child’s Reasons: The court will also consider the reasons behind the child’s preference. If the child can articulate valid and well-reasoned arguments for their choice, it may carry more weight. However, if the child’s preference appears to be based on manipulation or coercion by one of the parents, the court may discount it.
• Best Interests of the Child: The primary consideration in custody determinations in New York is the best interests of the child. Even if a child expresses a strong preference for one parent, the court will assess whether that preference aligns with the child’s overall well-being. The court may override the child’s preference if it believes that the preferred arrangement is not in the child’s best interests.
• Attorney for the Child: In some cases, the court may appoint an attorney for the child (Law Guardian or Attorney for the Child) to represent the child’s interests. This attorney will often interview the child, assess their preferences, and present the child’s viewpoint to the court. The attorney’s input can be influential in the court’s decision.
• Other Relevant Factors: Courts will consider other factors such as the fitness of each parent, the ability of each parent to provide a safe and stable environment, the child’s relationship with each parent, any history of abuse or neglect, and the child’s educational and social needs.
• Balance of Factors: The court will balance all relevant factors in the case, including the child’s preference, to make a custody determination that serves the child’s best interests.

At What Age Can a Child Choose Where He or She Lives?

It’s important to note that there is no specific age at which a child’s preference becomes automatically determinative or dispositive in New York for so long as the Court maintains custody jurisdiction. Instead, the court exercises its discretion based on the factors mentioned above. The court’s primary goal is to ensure that the child’s physical, emotional, and overall well-being is protected.  When a child reaches age 18, the Court no longer has jurisdiction to determine custody matters, leaving the child to determine for himself or herself where they may live.

Beyond simply providing input into residential custody arrangements, a child, especially through an AFC, may be heard regarding a non-custodial parent’s visitation or parenting time as well as any other matter affecting parenting issues or the child’s upbringing.

What is an In Camera in a New York Custody Case?

During the course of custody litigation in New York, the Judge may interview the child in what is known as a Lincoln Hearing or an “in camera” with both terms being used interchangeably.  The term Lincoln Hearing originated with the New York Court of Appeals Decision in Lincoln v. Lincoln, 24 N.Y.2d 270 (N.Y. 1969), wherein it was held that it was appropriate to allow  “the trial court in a custody proceeding discretion to interview the child in the absence of its parents or their counsel.”  As a result, during an In Camera, the children meet with the Judge and the AFC either in chambers or in a closed courtroom so that the children can openly discuss their position without fear, guilt or emotional strain of making statements about their family in open court.  The Court of Appeals held that such arrangements are appropriate in light of the “unjustifiable emotional burden on the . . . children and, at the same time, enable [the children] to speak freely and candidly concerning their preferences. 

Attorney for the Children in New York

In New York, an AFC, or Attorney for the Child, plays a crucial role in child custody cases. An AFC is an attorney appointed by the court to represent the child or children involved in a custody dispute. The role of an AFC is to advocate for the child’s wishes or the child’s best interests, depending on the age and maturity level of the child.  The Attorney for the Child serves in nearly the same function as any other attorney in the litigation.  The AFC has the right to investigate matters, file motions, bring applications to the Court, demand discovery, particulate in trials, and call witnesses, among other functions.  The primary responsibility of an AFC is to act as the child’s lawyer within the legal proceedings. This means that they are dedicated to representing the child’s best interests rather than aligning with either parent’s position.  The AFC is present at all appearances and legal proceedings related to the case and may participate in negotiations in or out of court.  Attorneys for the Children are sometimes errantly referred to as “Child Advocates.”  An AFC may advocate for the wishes of the child but if the child is not of a sufficient age or maturity level, the AFC may “substitute judgment” on behalf of the child and instead advocate for what the AFC believes to be in the best interests of the child.  After speaking with the child, gathering information and assessing the case, the AFC may make recommendations to the court regarding custody arrangements, including residential custody, 50 / 50 custody arrangements, nesting arrangements, legal custody and visitation / parenting time.

It is also crucial to note that AFCs are governed by ethical guidelines and rules of confidentiality that may prohibit the AFC from disclosing certain statements and positions of the child.

We proudly serve as Suffolk County custody attorneys.  Call today to schedule a free consultation and learn how our custody lawyers in Suffolk County can help.  Reach us at 631-600-3295 or through our online intake form to reach us 24 hours a day.

Parents involved in New York custody disputes should work with their attorneys to present their case effectively, taking into consideration the child’s preferences and other relevant factors. Ultimately, the court’s decision will aim to provide a custody arrangement that promotes the child’s best interests.