At What Age Can a Child Decide Which Parent to Live With?

By Michael DiFalco

Deciding who gets custody of a child is often a life-altering decision. The court will consider many factors when determining a suitable custody arrangement for the child and the parents. 

In some cases, the judge may consider a child’s preferences when making the decision. However, whether the judge will take the child’s desires into consideration depends on the child’s age, maturity, and the overall circumstances.

Understanding Child Custody in New York

There are different types of child custody, and the type of custody arrangement the court grants focuses on what is in the child’s best interests. Every situation is different, so the judge will need to thoroughly review the details along with evidence and testimony presented before they can make a decision. In any contested custody case, an attorney for the children will likely be appointed to advocate for the children’s position. Although with very young children, they do not always appoint an attorney, the attorney for the children is a critical advocate for older children. As part of a custody hearing, the judge will likely meet with the children and their attorney, without either parent or other parties present, for a confidential interview to determine their preferences in an age-appropriate conversation. All of these professionals engage with the children with their best interests in mind.

Physical vs. Legal Custody

Physical custody refers to where the child will reside. When a parent has physical custody, the child resides primarily in their home. Parents can share physical custody, or one parent can have exclusive physical custody. 

Legal custody has to do with a parent’s right to make major life decisions for the child. These decisions can include:

  • Where the child will go to school
  • What religion the child will practice
  • What doctors the child will see and what medical treatment they receive
  • Whether the children attend therapy
  • What special needs services the children receive
  • How to best care for the child’s educational, emotional and medical needs

Parents often agree to share legal custody, but when parties cannot agree on joint custody, the judge will likely grant one parent legal custody because if the parties cannot agree on joint custody the court cannot expect them to make future decisions together.

Sole vs. Joint Custody

When only one parent is granted custody of their child, they have sole custody. The parent with sole custody is the “custodial” parent, and the other parent is the “noncustodial” parent. The noncustodial parent is entitled to parenting time.

Joint custody is one of the most common arrangements. When parents have joint custody, they share physical and legal custody of their child. Joint custody is often most beneficial for the child, as both parents are heavily involved in their life. 

The Child’s Best Interests Standard

In most states, New York included, judges must make child custody decisions based on the child’s best interests. To determine what is truly in the best interests of the child, the court will base its custody decisions on certain factors, including:

  • The relationship the child has with each parent
  • Which parent is the primary caregiver
  • Where the child has been primarily residing
  • Both parents’ abilities to meet the child’s needs
  • The physical and mental health of both parents
  • Whether there is any history of drug/alcohol abuse or domestic violence

These and other details can help the judge decide which parent is entitled to custody and which custody arrangement would be beneficial for the child’s health and well-being. 

Can a child decide who they want to live with in New York?

Children may express a preference for one parent over another. However, a child’s preference only plays a small role, if any, in the judge’s custody decision. 

In New York, there is no fixed age a child must reach to determine where they want to live. However, a judge is more likely to place more weight on the preferences of a child who is 13-14 or older rather than a younger child. That being said, an articulate child who at the age of 6 or 7 has a very clear position will be heard through the advocacy of the attorney for the child. 

While a child’s desires may play a role in child custody determinations, a judge will never make a final decision exclusively based on their preference. It is just one of the factors in determining such complex issues. 

Will my child need to appear in court?

The Court and attorneys involved will try to avoid a child appearing in court. The child will almost never have to take the stand and testify in open court. However, in contested custody cases the court will usually meet with the children and the children’s attorney in their chambers (the judge’s office) for a confidential conversation about the children’s position. All necessary measures are taken to avoid making the children feel uncomfortable or anxious about that meeting and it is only done at the very end of a contested custody hearing. The extent of the interview is also heavily dependent on the age of the child, the issues presented by each parent, and the usefulness of such an interview in making a custody determination. 

Consult with a New York Child Custody Attorney

At Aiello & DiFalco LLP, located in Garden City, NY, we are dedicated solely to family law issues. We understand the challenges a child custody case can present, and we’re ready to help you get the best possible outcome for everyone involved. Contact our office today, and let’s discuss how we can help you.

About the Author
I am a partner at Aiello & DiFalco LLP, and my priority for my clients is to guide them through an arduous court case to provide them with the opportunity to write the next chapter in their life. I tailor my approach to each client’s priorities and positions, and to the extent that matters can be predicted, I will always provide a realistic perspective of how the law could be applied to the particular facts and circumstances of a case. Since I thrive on helping people and solving problems, I bring an optimistic and positive approach to practicing in a very difficult area of law. With more than a decade of experience handling hundreds of cases, I have the ability to get results on the issues my clients view as priorities. When cases or certain issues cannot be settled, I have a solid record of success at trials, hearings, and on appeals. Feel free to contact me for a free initial consultation, I am always available to help.