For parents considering divorce in New York, one of the most difficult and emotional questions is often the simplest to ask: Where will the children live?
For many families, custody and parenting time become the most important issues in the divorce. Parents are understandably concerned about maintaining strong relationships with their children, preserving stability, and determining what living arrangement will work best after the family begins living in separate households.
Whenever possible, parents should try to reach a custody arrangement themselves—with the assistance of experienced New York divorce attorneys when necessary. When parents cannot agree, however, the decision may ultimately be placed in the hands of a judge.
Residential Custody in a New York Divorce
New York courts decide custody based upon the best interests of the child. There is no single factor that automatically determines which parent will be the residential or primary custodial parent.
Instead, the court considers the totality of the circumstances, which may include:
- Each parent’s historical involvement in the child’s care and upbringing;
- The child’s existing home, school, and community stability;
- Each parent’s ability to meet the child’s emotional, educational, and physical needs;
- Each parent’s work schedule and availability;
- The ability of the parents to communicate and cooperate;
- The willingness of each parent to foster the child’s relationship with the other parent;
- The child’s relationship with each parent and siblings;
- Domestic violence, where applicable;
- The child’s preferences, depending upon the child’s age and maturity; and
- Any other circumstances affecting the child’s best interests.
The fact that one parent historically worked outside the home while the other was primarily responsible for childcare can be important, but it does not automatically determine custody. Divorce frequently changes a family’s financial and practical circumstances. A parent who previously stayed home may need to return to work, schedules may change, and the court must evaluate what arrangement serves the child going forward.
Can Parents Decide Custody Without Going to Trial?
Yes—and in many cases, that is the preferable outcome.
Parents who understand their children better than anyone else may be able to develop a parenting arrangement tailored to their family’s particular needs. An agreement can address residential custody, decision-making authority, parenting time, holidays, vacations, school schedules, transportation, extracurricular activities, and many of the other issues that arise after separation.
Reaching an agreement does not mean that either parent should simply surrender an important custodial right. Before agreeing to a custody arrangement, particularly where custody is disputed, parents should understand the potential long-term legal consequences of the proposed arrangement.
When an agreement cannot be reached, the court will determine custody based upon the children’s best interests.
What Is an Attorney for the Child in a New York Custody Case?
When custody is contested, the court may appoint an Attorney for the Child, commonly referred to as an AFC, to represent the child or children.
An AFC is not the attorney for either parent. The AFC represents the child and advocates for the child’s interests during the custody proceeding.
The attorney will generally meet privately with the child, without either parent present. This provides the child with an opportunity to communicate confidentially with his or her attorney about the family situation, relationships with the parents, concerns about custody or parenting time, and other relevant issues.
Parents should understand an important distinction: the AFC does not decide custody. The judge does.
The child’s position, as communicated through the AFC, may be an important consideration, but it is part of the larger best-interests analysis performed by the court.
Does a Child Get to Choose Which Parent to Live With in New York?
One of the most common questions New York divorce lawyers hear is:
“At what age can my child decide which parent to live with?”
There is no automatic age at which a child simply gets to choose.
A child’s wishes may be considered by the court, and generally the preferences of an older and more mature child may be entitled to greater weight. But a child’s preference is not controlling. The ultimate question remains whether the requested custody arrangement is in that child’s best interests.
The role of an AFC also changes depending upon the child’s age, maturity, and ability to make a knowing and considered judgment. Under New York’s attorney-for-the-child framework, an AFC generally advocates for the child’s expressed position, subject to limited circumstances in which the attorney may determine that the child lacks the capacity for knowing, voluntary and considered judgment or that following the child’s wishes would create a substantial risk of imminent, serious harm.
This is one reason custody cases involving teenagers can be significantly different from those involving very young children.
What Happens When Siblings Want Different Things?
Custody disputes can become even more complicated when there is more than one child.
If siblings have materially different interests or positions that create a conflict for a single attorney, separate Attorneys for the Child may be necessary. This can add another layer of complexity—and expense—to an already difficult custody proceeding.
Courts are also generally reluctant to separate siblings without a compelling reason, although every custody determination depends upon the particular facts of the family.
Will the Judge Speak Directly With the Children?
In a contested custody proceeding, a judge may conduct what is commonly known as an in camera interview of a child.
This is not the same as putting a child on the witness stand in open court and asking the child to choose between Mom and Dad. The interview is generally conducted privately so the court can obtain information relevant to its custody determination while attempting to protect the child from unnecessary exposure to the parents’ litigation.
The child’s AFC will generally participate in that process.
Think Carefully Before Turning Custody Into a Battle
Custody litigation can be necessary. There are cases involving domestic violence, substance abuse, neglect, parental alienation, serious mental-health concerns, unsafe parenting, or other circumstances in which aggressive court intervention may be essential to protect a child.
But where two capable parents primarily disagree over schedules, control, or which household should be considered the children’s primary residence, parents should carefully consider the emotional and financial consequences of prolonged custody litigation.
A child should not feel responsible for deciding which parent “wins.”
When possible, parents should work with their attorneys to develop a custody arrangement that protects their parental rights while minimizing the extent to which their children become participants in the divorce.
Speak With an Experienced New York Divorce and Custody Attorney
Custody decisions made at the beginning of a divorce can have consequences that last long after the divorce itself is over. Before moving out of the marital residence, agreeing to a temporary parenting schedule, changing a child’s school, or accepting a custody arrangement, it is important to understand how those decisions may affect your case.
The Meyers Law Group, P.C. represents individuals in complex divorce, custody, and family-law matters throughout New York, including Suffolk County and Nassau County. We help clients evaluate custody strategies, negotiate parenting arrangements, and, when necessary, litigate contested custody matters with the goal of protecting both the client and the children involved.
If you are considering divorce or facing a custody dispute, obtaining legal advice early can help you make informed decisions before temporary arrangements become the foundation for a long-term custody order.
This article is for general informational purposes only and is not intended as legal advice. Every custody matter is fact-specific, and prior results do not guarantee a similar outcome.