The child’s wishes: When do they matter in divorce court?
One of the most frequently asked questions when it comes to child custody cases is “What about the wishes of the child or children in question?”
When the New York State family courts are called about to determine a custody arrangement, they weigh a number of factors to decide what outcome is in the best interests of the child. One of these criteria may be the child’s wishes regarding which parent he or she prefers to live with.
The amount of weight that a court will give to what a child wants will depend on the conditions below.
Age
Although New York family law does not specify the age at which a child becomes able to make important decisions like which parent will be their primary caretaker when they turn thirteen their wishes factor more strongly in the final outcome. Evidence and case precedent both suggest that children aged seven and up are able to formulate and express what they want, although their wishes carry less weight. For babies and younger children, substituted decisions are usually considered more appropriate.
Maturity level
More significance is placed on a child’s preferences if he or she demonstrates the capability of making well-reasoned and independent decisions. Younger children who are not sufficiently mature can be easily coached by a parent to state a certain preference.
The likelihood of parental influence
Unfortunately, some parents try to tip the custody scales in their favor by denigrating the other parent and coaxing the children to give answers that are favorable to them. This type of manipulation can backfire: in the case of Jeannemarie O. v. Richard P (2012) a Third Department Decision affirmed an earlier ruling that awarded custody to the father after it became obvious that the mother was trying to sabotage the children’s relationship with him.
If a judge suspects that a child has been coached to provide certain answers to particular questions, then the impact of their wishes on the final decision drops substantially.
Usually a law guardian, or guardian ad litem, is appointed for the child or children. This usually happens when a parent requests legal guidance for them, or if the court believes that they should have their own attorney. He or she meets with the child to discuss their wishes and needs and acts as their advocate in the courtroom. If this guardian believes that what the child wants could expose him or her to potential harm, then they will override those wishes and advocate for an outcome that they believe to be in the child’s best interests.
Ideally, divorcing parents will agree on a practical custody arrangement that puts their child’s interests above all else. But if they cannot reach an accord, then a New York Family Court judge will have to examine all relevant factors to make the decision.
