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Can my child choose to live with me?

Divorce proves devastating for nearly every party involved, but custody battles may bring intense emotions and confusion.

You may have a positive relationship with your child. You believe that if up to them, they would choose to live with you instead of your ex-spouse. You may believe that a child’s preference may receive consideration, but a judge makes the final decision as to whom receives custody in a divorce settlement in New York.

Legal and physical custody

In New York, judges may grant custody in two categories.

  • Legal custody: the right of a parent to make important decisions about the child’s life such as religious practice and type of education
  • Physical custody: the right of a parent to the physical care and supervision of a child

Most common, joint custody gives both parents equal legal and physical custody of a child until he or she is 18.

“Best interest” of your child

In determining legal and physical custodial rights, New York judges analyze the best interest of your child. Many situational factors are examined, and a determination of custody revolves around the safety of your son or daughter.

examined by the court may include:

  • Which parent is the main care giver
  • Whether domestic violence has occurred in the family
  • Whether your child has special needs
  • The mental and physical health of each parent
  • Work schedules and the ability to provide monetary care for the child

After a child turns 13, determining custody may also involve identifying the preference of a child.

Age considerationand custody

Consideration of a child’s parental preference does not prove common before the age of 13 in New York. The court determines that the factors a young child may contemplate may not align with the security of that child. A child under 13 may simply be too young to recognize the significance of custody arrangements.

Further, the court recognizes that if a child’s parental preference received significant weight, parents may coerce young children to make a specific custody decision.

After a child turns 13, however, a judge may determine that a child’s preference weighs more. The judge may interview your child to understand the nature of his or her parental relationships and ask questions regarding daily behaviors of your parenting.

Parents must understand that a final custody decision will never be solely based on a child’s preference. A judge will always determine a child’s best interest first and decide the impact of a child’s preference thereafter. Parents should find comfort in knowing that the safety of their child is the most significant element in resolving any custody battle.

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