Raising children is not easy and when you are doing it as a single parent, it gets even harder. Custody agreements are usually set in such a way as to allow both parents to have a say in the child’s life. That may not always be how it works out though.
Often, custody falls more to one parent than the other. And sometimes the child wants a different living arrangement.
What do you do when your child has a preference for their custodial parent? How does the court handle it?
Here’s what you need to know.
What are the New York Child Custody Laws?
In New York, the court has the authority to determine a child’s custody until that child reaches 18 years of age. When determining custody, the court’s primary consideration is what is in the best interest of the child. This means that the court looks at a variety of issues regarding the child, the child’s parents, and the child’s home environment when deciding who will be the custodial parent.
However, there must be a court order in place for the court to enforce it. If there is just an agreement between the parents or guardian but nothing was ever filed with the court, the court has no authority over it. In these cases, both parents have equal rights to the child under the law. They both have equal legal and physical custody of the child.
How Does Child Custody Work in New York?
In New York, if there isn’t a court order for custody of a child, all custody is 50/50, meaning that both parents have equal rights. If there is a court order, it typically designates one parent as the custodial parent and the other parent as the non-custodial parent.
- Custodial parent – The parent the child lives with the majority of the time.
- Non-custodial parent – The parent that the child does not live with the majority of the time. This parent usually has regularly scheduled visitation with the child and is ordered to pay child support.
Within the custody arrangement, there are two types of custody:
- Legal custody – The person or people who have legal custody have the right to make important decisions regarding the care of the child. This can include education, medical care, camp, and religious upbringing.
- Physical custody – The person or people who have physical custody are responsible for the physical supervision and care of the child.
The judge may give legal custody to just one parent or joint legal custody to both parents. Physical custody may be awarded to just one parent, or they may have joint physical custody, meaning that the child lives with each parent for the same amount of time.
In a custody order, the judge may give both physical custody and legal custody to one parent or to both. However, he or she may give physical custody to one parent and legal custody to the other, physical custody to one parent and joint legal custody, and other combinations.
What Happens in Child Custody Disputes?
Sometimes a child custody order works for all parties until the child turns 18 and the order is no longer valid. Other times, though, disputes arise, and parents find themselves back in court, fighting over who gets custody, either physical, legal, or both.
Often the child gets caught in the middle.
Sometimes the child has voiced his or her preference for living with one parent over another.
A custody order cannot be changed without going to court. If the order was decided in the court, it must be changed in the court. The judge has final authority. Even when the child has expressed a desire to live with one parent, it still has to go before the judge and the judge still has to make a determination on that request, whether to grant it or deny it.
Will the Court Consider the Child’s Custodial Preference?
In New York, there is no legally set age that a child must be in order to request the custodial parent they live with. The court will take into consideration the request of a young child as well as a preteen or teenager. In some cases, the child may be appointed a guardian ad litem or even their own attorney. These people will speak for them, support their wishes, and keep in the forefront what is in the best interest of the child.
Often the judge will talk to the child privately, either in chambers or in a cleared courtroom. They will ask the child questions to determine if the child understands the situation and if they are mentally capable of making that type of decision.
What Must the Court Consider When Determining Which Parent the Child Will Live With?
The court looks at a variety of factors when deciding custody of a child. Each of these must be held up to the standard of what is in the child’s best interest. These factors include:
- Which parent is better equipped to physically provide for the child regarding shelter, food, education, etc.
- Which parent is better equipped to emotionally provide for the child regarding support, encouragement, growth, etc.
- The physical and mental health of each parent.
- Each parent’s home environment.
- A history of domestic violence or any instances of domestic violence.
- The relationship the child has with each parent.
- The length of time the child has lived with each parent.
- Any siblings and their relationship with the child.
- Any special needs that the child may have.
- Any alcohol or substance abuse either parent may have, either current or past.
- The work schedules for each parent.
- The parenting skills of each parent.
- Which parent is more apt to foster a good, positive, healthy relationship between the child and the other parent.
The child’s preference may also be taken into account, but it is not the only factor in the judge’s determination. All the others will be considered too.
How Can a Child Choose Whom They Want to Live With in a Custody Hearing?
If the child has a preference for their custodial parent and both parents agree, it is just a matter of modifying the custody order.
However, if the child wishes to live with the non-custodial parent, but the other parent does not agree, there is nothing that the non-custodial parent can do but take the matter to court to modify custody. This is when it is wise to have a good family law attorney to handle your case.
In court, the child’s preferences can be raised, and the judge may wish to speak with the child. After reviewing all the information, the judge will then decide whom the child will live with. The judge will consider the child’s preferences at any age, but at 13 years old, their preferences will be given more weight.
If you are going through a custody battle right now and it is looking bleak, don’t give up, call the Litvak Law Firm at 718-989-2908. Our team of family law attorneys will fight for you to protect your rights and get the best possible outcome for your case.