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Court ordered custody arrangements can either be argued for in the Supreme Court of New York or in Family Court. When a case for divorce is brought forward in the Supreme Court of New York, the child custody arrangement will also be presented at that time. Whereas, in Family Court, a child custody case is brought forth because the parents have never been married, but there is a disagreement surrounding who will care for the child. In either the Supreme Court of New York or Family Court, the presiding judge will allow the child a chance to voice their own opinion about who they believe is better suited to be granted custody.

Ultimately, the decision of custody agreements will be decided by a judge and the judge alone. While a minor child, who is 13 years of age or older, will be granted an opportunity to voice their opinion on who they would like to live with, the judge who hears the case will ultimately make the final decision. Whichever parent the judge decides to give sole custody to is dependent solely on what is best for the child. Sometimes, who is best for the child may not be who the child, or even the parents, have given preference to.

The most common factors to be evaluated when deciding on a custody case includes, but are not limited to:

  • Each parent’s custody preference
  • The child’s custody preference, if the child is sufficiently mature
  • The child’s emotional and physical health
  • Each parent’s emotional and physical health
  • Each parent’s ability to care for and provide stability for the child
  • Each parent’s willingness to encourage the child to maintain a strong relationship with the other parent
  • The child’s adjustment to home, school and community and the potential effects of any change, and
  • Each parent’s history of domestic violence, if any

Whether a child is 4 or 17, their preference for who will take care of them will always be important. However, once a child reaches the age of 13, their preference will be given more weight. For example, an 8-year-old stating that he would like to stay with his dad might hold less weight than a 13-year-old stating that they wanted to live with their mom. Furthermore, an 8-year-old stating he wants to stay with his dad because his dad is more fun is quite different from a 13-year-old stating he wants to stay with his mom because his mom always helps him finish his homework, and his dad’s house is too loud and distracting. A judge is more likely to listen to the 13-year-old, as staying with the mom might be best for both children, because the mom seems more likely to ensure that the children are focusing on the right things. As exemplified, how much a judge takes a child’s preference is also dependent upon how mature the child is. The more mature a child presents themselves, the more a judge will listen and act on their preference.

Furthermore, judges are hesitant to listen to much younger children, as younger children are often easily manipulated by parents. Sometimes, parents will entice their children to lie about who they would prefer to live with. A child’s preference is usually a good indicator of what is best for that child, but the judge will be able to detect if a child truly prefers that parent, or if that parent has negatively influenced the child’s decision. If the court finds that there are signs that a child has been coaxed to testify a certain way, the judge will easily deny the child’s preference.

The Lawyer for The Child vs. A Guardian Ad Litem

In Family Court, more often than in the Supreme Court of New York, an attorney will be appointed for your child, and the attorney will advocate for the child’s wishes. The lawyer for the child will interview the child in private in an effort to understand why they prefer one parent over another. The sole purpose of the lawyer is to advocate for the child’s wishes, and therefore, the lawyer will not tell the judge who they think is best for the child. During the trial, the lawyer for the child will be able to call witnesses and question the parents.

A judge could also appoint a guardian ad litem to speak for the child during the hearing. This person does not have to be an attorney, but will also be involved in investigating the case and reporting the findings to the judge. A guardian ad litem will typically inform the judge on what they think is best for the child, regardless of the child’s wishes.

The lawyers at Larry McCord & Associates, LLC have experience representing spouses in all aspects of matrimonial and family law litigation. The complexities of divorce and custody cases can be overwhelming and emotional. Contact Larry McCord & Associates, LLC at (631) 643-3094, or fill out our contact form, to learn more about the firm’s services and approach to child custody disputes.

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