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Can Children of Divorce Choose Which Parent They Live With?

Can Children of Divorce Choose Which Parent They Live With?It’s not uncommon for children to develop a closer relationship with one parent over the other. As such, they may have a preference regarding custody should their parents ever separate or divorce.

In some states, a child’s wishes will hold a lot of weight, especially when he or she reaches a certain age. In Tennessee, Oklahoma, and Mississippi, for example, family law judges seriously consider the preferences of children who are at least 12. And in Georgia and West Virginia, teens who are over 14 may actually choose the custodial parent, unless their preference threatens their wellbeing in some way.

When it comes to custody proceedings in New York, though, there is no age at which a child automatically assumes the right to choose the custodial parent. Once children of divorce turn 18, the court system can no longer dictate where they live (even if child support payments continue until their 21st birthday); however, until that time, custody will ultimately be up to a judge.

Should a child have a preference, though, the judge might take it into account. While the court does not have to abide by the child’s request, any such wishes will at least be considered. Naturally, the older the child is, the more weight his or her preferences will hold.

As for actually stating their wishes, children are not typically expected to testify in court. Not only is doing so stressful and potentially traumatic, but it can also fracture the relationship the child has with the parent whom he or she does not end up choosing.

Instead, the child might accompany both parties’ lawyers into the judge’s chambers to discuss the matter privately. Depending on the circumstances, a third lawyer who is serving as the child’s advocate may also be involved. If each parent’s lawyer provided a different answer when asked whether the child exhibited any preferences regarding custody, for example, the judge might deem it appropriate to appoint a third lawyer to represent the child and speak on his or her behalf.

At the end of the day, though, a child’s preference remains just one factor that influences the custody proceedings. Other factors that may impact the outcome of the case include:

  • Which parent has served as the primary caregiver up to that point;
  • The physical and mental health of each parent;
  • The work obligations of each parent;
  • Each parent’s history, if any, of neglect or abuse;
  • The quality of the relationship between the child and each parent;
  • Each parent’s living accommodations and ongoing ability to provide a stable home environment; and
  • Each parent’s willingness to cooperate when it comes to resolving common co-parenting issues.

Call 716-855-3761 to Speak with a Family Law Attorney in New York

If you need help finalizing or modifying a custody order, contact LoTempio P.C. Law Group. Our knowledgeable attorneys have more than 200 years of combined experience in the legal field. Call 716-855-3761 or fill out our Contact Form to schedule a free case evaluation with a family lawyer in New York.

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