Are Children’s Preferences Considered in Custody and Visitation Cases?

In a divorce or separation, it can be difficult to formulate child custody and visitation arrangements that work for everyone in the family. Each parent has their own opinions about what the schedule should be. When the parents can’t agree, a judge must weigh numerous factors to decide on the right arrangement. Since every family is unique, judges give some factors more weight than others. The end goal, in every case, is to create a custody schedule that is in the best interest of the child.

The child’s preferences are among the factors judges consider in custody decisions. New York courts try not to require children to appear in court to express their preferences. In most situations where there is a child over the age of five, the court will appoint an Attorney for the Child (AFC) — a licensed New York lawyer who will talk with the children to learn about their custody desires and then report findings and recommendations to the court. Judges tend to give great weight to the AFC’s recommendations when making custody determinations.

The AFC will try to get the children to explain the reasons for their preferences. Often, the AFC meets with children when the parents do an exchange. This way, the AFC can see how the child answers questions after being with one parent and make a comparison with how the child answers after being with the other parent. This can help the AFC determine if perhaps one parent is coaching the child to say certain things in order to influence the custody decision. In addition to talking to your kids, the AFC usually meets with each parent and can also review school records, medical records and other available information that might help them better understand your family and the needs of your children.

Typically, the older a child is, the more weight is given to their custody preferences. This is particularly true for teenagers, who often can express clear reasons for why they prefer certain schedules. If a child is too young to have a custody opinion, or if a child insists on living with one parent when doing so could be detrimental to the child, the AFC can substitute their own judgment for that of the child. In such a case, the AFC must explain to the judge what the child requested and why the requested result is not appropriate.

The Law Office of Maurice Verrillo, P.C. helps parents in Rochester and the surrounding areas resolve child custody disputes, including those where children’s preferences may be at issue. If you would like to speak with our attorney about your needs, please call 585-563-1134 or contact us online for a free consultation.


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