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Can Older Children Choose Child Custody in Divorce?

by | Aug 31, 2021 | News and Events

There are many important factors that go into determining child custody and visitation in New York. While a child’s wishes are heard and considered, especially if they are older, there are more levels of complexity to a child custody case than with whom the child wishes to live.

Here’s what you should know about when children can, and can’t, choose custody arrangements in a Long Island divorce and how to get the legal support you need now.

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Taking an Older Child’s Wishes Into Consideration

In the state of New York, regardless of a child’s age and what they want, they ultimately are not the one who makes the final decision about which parent they live with.

Judges do take the preferences of older children into account, and in some cases, younger children if it’s clear the child strongly wants to be with one parent over the other and no coercion is taking place. It’s important for the court to think about what the child wants and if they will be happy living with either parent.

In the end, however, the judge chooses who the child lives with based on what they consider are the child’s best interests. A child may not fully understand every factor at play and may not be the best judge of which parent would best provide for their physical and emotional needs.

Weighing the Best Interests of the Child

Judges who preside over family law cases typically have a lot of leeway when it comes to deciding what’s best for a child. A judge will take into account a multitude of factors regarding the child’s environment, education, health, parental support, and more.

Parents often feel like they are under intense scrutiny when they’re being evaluated in a child custody case, and this is mosstly true. A judge must be able to assess each facet of a child’s life and determine the best way to keep the child safe and ensure they have access to nutrition, education, clothing, healthcare, and social activities.

Judges can consider any issue that is significant to a child’s well-being when making a determination about custody. Even if a child wants to live with one parent, a judge might look at that parent’s physical and mental health, their ability to provide a stable environment for the child, etc. If the judge determines that it is in the child’s best interests to live with the other parent, the judge will order this despite the child’s wishes.

If a parent has a record of domestic violence, this also typically precludes the child from living with that parent, regardless of whether they want to or not. This is to protect the child’s safety. If neither parent is considered fit, a judge may decide that custody is awarded to the State of New York.

Can Children Refuse Visitation on Long Island?

Until a juvenile reaches the age of 18 or becomes legally emancipated, their parents must abide by the conditions of a child custody order. If a custodial parent prevents a non-custodial parent from seeing their child, the custodial parent may face legal consequences for parental kidnapping.

When a child refuses to visit the non-custodial parent, they put the custodial parent in jeopardy. While a judge is less likely to attempt to force a teenage child to attend visits, they may order a parent to make sure that a younger child has regular visitation with the non-custodial parent. Allowing and encouraging visits between the child and their other parent is the responsibility of both parents.

When to Call a New York Family and Divorce Lawyer

The most important ally you can have in a child custody case is an experienced New York family and divorce lawyer. At Hornberger Verbitsky, P.C., we understand how challenging child custody issues are. We know they can be heart-wrenching, especially if the judge makes a decision that is against a child’s expressed wishes. An experienced attorney will have the skills to express the desires of a child who wants to live with a particular parent clearly and in a compelling way.

To increase your chances of receiving a favorable verdict, it’s critical that you work with a Long Island family law attorney with a wealth of child custody experience. Contact the law office of Hornberger Verbitsky, P.C. today to schedule your initial consultation by calling 631-923-1910 or fill out the short form on this page.

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At your meeting, your attorney will describe the many options available and determine together which is the right solution for you. By the end of this meeting we’ll all understand how we can best help you to move forward.

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Tara Tocci
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I called to make an appointment for a consultation to discuss a mediated divorce, the office was fantastic with getting me a prompt appointment. When going in all my questions were asked and I left feeling comfortable in my decision to move forward in using the Hornberger/Verbitsky office. Despite a pandemic going on the office still worked diligently to get my papers filed and my divorce complete in a timely manner. Highly recommend!
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Hornberger Verbitsky, P.C were phenomenal in every way. Robert was very genuine, patient and professional. Walking in, I had no idea what to expect but he went above and beyond to explain the entire process thoroughly. He guided and informed me of my rights. Patty was amazing, she answered every question I had no matter how many times I called, she was very understanding. I highly recommend Hornberger Verbitsky, P.C. Even if its just for questions on how to navigate this process.
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