You may have heard that a child can choose the parent with which they would like to live. It’s true, they can—when they turn 18. Many people believe that children can choose at a younger age, but that belief is nothing more than an urban myth.

Prior to age 18, New York children are subject to a custody order, and they have little or no say in the matter. Much depends on the circumstances of both parents, and the relationship the child has with both of them. The judge will hear what a child has to say on the matter, but it is not the sole determining factor.

Who Decides

The judge is given the final say in who will be the primary custodial parent, not the children.  If both parents agree on a custody arrangement, it will make the decision easier for the judge and everyone involved. Mediation can help if you and your spouse can’t agree.

The primary factor in child custody decisions in New York is “the best interest of the child.” This may run counter to what a child says in court under oath.

Judges realize that a young child is easily swayed by a parent who makes all manner of promises to them. It’s not difficult to persuade a young child to say something bad about the other parent when this parent promises to give them something they value. That’s why the child’s wishes aren’t the sole reason for deciding custody.

Does The Child Have Any Say In The Matter?

To a certain extent, yes—but it’s not everything. The child can make his or her wishes known to the court, and that they would prefer to live with one parent over the other. That doesn’t mean the child will get what they want.

The preferences of older children (over 15 or 16) may be given some weight in the discussion, but it is still not the primary deciding factor. Only the judge has the authority to assign the child’s custody, and the decision made is based on the child’s best interest.

How A Judge Decides

The judge has considerable leeway for determining a child’s best interest. Part of the decision involves wellbeing and circumstances of both parents, including each parent’s financial situation. The child’s preferences are also included. Other factors include:

• The ability of both parents to provide the child with a loving, stabile home after the divorce is settled
• The physical and emotional health of both parents
• The custody preferences of each parent
• If there is a history of domestic and/or substance abuse, neglect, or other detrimental elements
• The impact of the changes to a child’s life—i.e., friends, school, relatives and extended family, community, etc.

The safety and wellbeing of the child is paramount. If one of the parents has a history of domestic violence, the judge may order only supervised visits with that parent.

When A Child Refuses Visitation

Custodial parents are required to follow a court order and ensure that their children spend time with their other parent. Not doing so puts the parent in violation of the judge’s order. The judge can charge the parent with contempt of court, requiring the parent to facilitate those visits.

While a judge may not issue a sanction to a rebellious teenager for refusing to visit their parent, he or she may strongly encourage them to build a relationship with them. Both parents have a responsibility to ensure that the children have equal time with the other parent, and encourage visits.

If a current visitation order is no longer workable, then petitioning the court for a modification will make things easier for everyone. 

Our Experienced Family Law Team Puts New York Families First

At the Law Office of Stacy Sabatini, Esq., we provide an array of family law and related legal services to families in Rockland, Orange, and Westchester counties. If your New York visitation order is not being followed, or you need to learn more about New York visitation orders, please contact our office online by filling out our online form or call (845) 243-0295 today!