When parents can not agree on a custody arrangement, it may seem an obvious decision to ask the children which parent they prefer to live with. However, courts are not always required to consider the wishes of children.
When can children testify in custody hearings in New York?
Best interest of the child
The primary factor determining who gets custody of children is the court’s determination of what is in the child’s best interest. Judges consider many factors when determining the child’s best interests:
- Which parent is the main caregiver
- Parenting skills of each parent
- History of domestic violence
- Parents’ mental and physical health
- Child’s relationships with other family members
- Childcare plans of each parent
The court may also consider what the child wants, but only in certain circumstances.
When the court considers the child’s wishes
The judge must consider the wishes of children aged 14 or older. However, the court does not have to award custody based on those wishes. Most parents opt not to have children testify in court because of the potential emotional toll of choosing between parents. However, the court can decide to hear the child’s testimony in a camera hearing with only the attorney and court reporter present.
When should children testify?
A child’s testimony may be necessary if there is domestic violence in the home. Children may also need to testify if a parent is using drugs, has an untreated mental illness, neglects the child or the child witnessed the parent attempt suicide.
Conflicts between parents can cause distress for children. Avoiding testimony except in cases of abuse or neglect may save children from further emotional trauma.