Can Children Express Preference in New York Custody Proceedings?

by ECL Writer
children preference In New York custody proceedings

In New York, children of a certain age and maturity level may be able to express their preference in custody proceedings. However, the court ultimately makes the final decision based on the best interests of the child. In a custody case, the court will consider various factors, including the child’s relationship with each parent, the home environment of each parent, and any history of abuse or neglect. If a child is of a sufficient age and maturity level, the court may also consider the child’s expressed preference.

The age at which a child may express a preference varies, but it is generally around 14 years old. The court will assess the child’s maturity level and whether the child has the ability to make an informed decision about their custody arrangement. The court may also appoint a lawyer for the child, known as a “law guardian,” to represent the child’s interests and to make recommendations to the court.

In order to express their preference, the child may meet with the judge in chambers or provide written testimony. The child may also provide their preference through their law guardian or through a court-appointed psychologist or custody evaluator.

It is important to note that a child’s preference is just one of many factors that the court will consider in making a custody decision. The court may not necessarily follow the child’s preference if it is not in the child’s best interests. For example, if the child’s preferred parent has a history of substance abuse or domestic violence, the court may not award custody to that parent.

Additionally, a child’s expressed preference may change over time, and the court may consider a change in preference when making subsequent custody decisions. The court may also take steps to protect the child from being unduly influenced by either parent, such as by prohibiting coaching or pressuring the child to express a certain preference.

New York Child Custody Basics

Together or with the assistance of a mediator, parents can negotiate their own custody arrangements. Deciding who gets custody of your children can be a very simple procedure if you and your spouse are ready to compromise. The majority of the time, parents who are divorcing or separating are unable to agree on child custody. A judge will have to decide both physical and legal custody at a custody hearing based on the best interests of the kid.

Physical Custody

Where a kid resides is determined by “physical custody,” sometimes known as “residential custody.” The majority of the time, a parent who has primary physical custody resides with the child. A parent may have sole physical custody, or joint custody, or both parents may share physical custody. The term “custodial parent” and “noncustodial parent” refer to the parent who has the majority of physical custody of the child. Even though one parent does not have legal custody of their kid, they are typically still entitled to frequent and ongoing visits. This may entail having supervised visits with a parent who has a history of domestic violence or substance misuse until the judge is satisfied that the kid is safe in that parent’s care.

Legal Custody

Legal custody is the authority a parent has to act in a child’s best interests. A parent with legal custody has the authority to make decisions regarding a child’s education, participation in important medical procedures, and choice of religion. A child’s best interests are frequently served by parents sharing legal custody.

Understanding A Child’s Best Interests In New York

In New York, judges are given a great deal of discretion when deciding what is in a child’s best interests. In addition to a child’s best interests, a judge will take into account the situation of the child’s parents and the particular facts of the case. In New York, a judge has the discretion to consider any aspect of a child’s welfare while determining custody. A court may specifically look at the physical and emotional well-being of the child and parents, the capacity of each parent to give the child stability and the child’s relationships with other members of the family. Both the parents’ desire for custody and their preference for the child are important considerations. A must also determine whether joint custody is necessary. A judge will consider the parents’ cooperation and each parent’s willingness to encourage a relationship between the kid and the other parent when determining joint custody.  N.Y. Dom. Rel. L. § 240 (2020).

A significant custody factor is the child’s safety while in a parent’s custody. Any parent who has a history of domestic violence may be subject to supervised visits which will have an impact on the custody decision.

Siblings are kept together whenever feasible. The needs of each kid are, however, assessed separately, and in some cases, a judge may determine that dividing up siblings is in the best interests of each child.

At What Age Can a Child Refuse Visitation in New York?

The interests of a kid are taken into consideration while creating visitation and custody agreements. Until a kid reaches the age of 18 or becomes emancipated, parents are required to abide by the requirements of a custody order. If a custodial parent forbids a child from seeing the noncustodial parent, there may be legal repercussions.

A parent is in danger when their child declines to visit. Naturally, forcing a teenager to go to visits is considerably more difficult for parents than forcing a child to go to visits. A parent will be required by a judge to make sure that a young child visits the other parent. If a 17-year-old is avoiding visits, a judge or parent can’t do anything about it.

Allowing and promoting visits between the child and the other parent is the responsibility of each parent. A judge might strongly advise a youngster to develop a relationship with both parents but won’t threaten or punish a teenager for refusing visits.

Allowing and promoting visits between the child and the other parent is the responsibility of each parent. A judge might strongly advise a youngster to develop a relationship with both parents but won’t threaten or punish a teenager for refusing visits.

When Can A Child Speak For Themselves In Court?

In most jurisdictions, children are generally not considered legally competent to testify in court until a certain age, typically around the age of seven or eight. However, the actual age at which a child can testify can vary depending on the jurisdiction and the specific circumstances of the case.

In some cases, a judge may allow a younger child to testify if they believe that the child is capable of understanding the oath to tell the truth and can provide reliable testimony. This decision is usually based on the child’s ability to communicate effectively, to understand the consequences of telling the truth, and to distinguish truth from lies.

If a child is deemed competent to testify, they are typically questioned by the judge, the prosecuting attorney, and the defense attorney. The questioning is usually done in a conversational manner, and the child’s answers are used to determine the credibility of their testimony. The child’s testimony is then weighed against other evidence in the case to determine the outcome.

In some cases, a child may not be competent to testify in court, but their statements may still be used as evidence if they were made to a trusted adult or a professional, such as a doctor or a police officer. The statements may also be admissible if the child was made spontaneously and voluntarily, without any leading or suggestive questions.

It’s important to note that even if a child is deemed competent to testify, their testimony may still be subject to various legal challenges, such as a challenge to their credibility or a challenge to the reliability of the memory of the event in question.

In addition, some jurisdictions have special provisions for children who are victims of abuse or witnesses to violent crimes. In these cases, the child may be allowed to testify through closed-circuit television, with the use of a support person, or with other special accommodations to reduce the stress and trauma of the testimony.

What Is The Parental Preference Rule?

The Parental Preference Rule is a legal principle in child custody cases that provides that a court should consider the preference of a child when determining the best interest of the child. This rule is based on the idea that children are best served when they are able to maintain meaningful relationships with both parents.

The Parental Preference Rule is applied differently in different jurisdictions. In some states, the child’s preference is considered to be one of many factors in determining the best interest of the child, while in others, the child’s preference may be given greater weight.

When considering a child’s preference in a custody case, a court will typically take into account the child’s age, maturity, and ability to understand the situation. In general, the older the child, the more weight their preference will be given. However, even a young child’s preferences may be considered if they are able to express them in a clear and consistent manner.

In order to determine a child’s preference, the court may consider several different methods, such as interviewing the child in private, appointing a guardian ad litem to represent the child’s interests, or conducting a psychological evaluation. The goal of these methods is to ensure that the child’s preference is expressed freely and without coercion or manipulation.

It is important to note that while the Parental Preference Rule is a well-established principle in child custody cases, it is not always applied in every case. The court may choose to ignore a child’s preference if it is deemed to be not in the best interest of the child, such as in cases where the child has been unduly influenced by one parent or if the child’s preference would put them at risk of harm.

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