How NY Courts Weigh Children’s Preferences for Custody and Visitation
Any child old enough to understand that their parents are splitting up and that they will no longer all live together likely has thoughts about what they want their own living situation to look like. When parents cannot agree on custody and visitation, the judge may ask the child about their preferences.
Because testifying in court can be highly stressful for a child, New York law allows for a private session between the judge and the child, called a “Lincoln hearing” after a 1969 divorce case. A judge generally orders a Lincoln hearing only if the custody battle is so contentious that the judge believes it important to hear from the child, assuming they are old and/or mature enough to express an opinion.
A Lincoln hearing is held in the judge’s chambers. The parents cannot attend. They need not even give their permission for the hearing. They can, however, request one. They can also suggest questions for the judge to ask, although those may or may not be used.
An attorney who has been appointed to represent the child will attend. The attorney can help the child communicate their thoughts but cannot influence them. The only other person present would be a stenographer, although transcriptions are sealed and not available to either side in the case.
A child under 10 years of age will likely not be sworn in. Instead:
- They will be asked if they know the difference between the truth and a lie.
- They will be told that they need to tell the truth.
- They will be told that there may be consequences for lying to the judge.
Older children generally are sworn in. Either way, children who take part in a Lincoln hearing are made to understand that it is not just a simple conversation; that they are there to talk about what kind of parenting arrangement they prefer and why.
It is the judge’s responsibility to determine what arrangement is in the child’s best interests. A child’s stated preferences will not be the sole deciding factor. However, they can be significant if the child has clear reasons for preferring a particular arrangement and it is apparent that those reasons are theirs alone — not based on coaching by a parent, on falsehoods they have been told or on unwarranted fears.
While parents do not have the authority to prohibit their child from participating in a Lincoln hearing, they can obviate the need for one by working together, each with the guidance of their attorney, to create a custody and visitation arrangement that is in their child’s best interests.
The Law Office of Maurice Verrillo, P.C. in Rochester helps parents in Western New York State resolve child custody disputes. To schedule a consultation, call us at 585-563-1134 or contact us online.
June 28, 2026 Posted in Visitation Rights Tagged custody, Lincoln hearing, visitation Comments Off on How NY Courts Weigh Children’s Preferences for Custody and Visitation
