What if You Win Child Custody, but Your Child Wants to Live With Your Former Spouse?
Ask most anyone going through the divorce process, and they will tell you: child custody issues are at the top of their stress list.
Family dynamics are thrown into flux during the process of dissolving a marriage. This most certainly presents challenges, but when handled in a sensitive, thoughtful manner, it can also be an opportunity to collaborate. If the process is done well, everyone impacted will feel respected and heard.
When Can a Child Choose Where They Want to Live?
There is a common misconception that a child of a certain age has the legal right to choose which parent to live with. In reality, judges make the decision and are not bound by the wishes of a child who has not yet reached the age of consent at 18. That said, the opinions of an older child do tend to carry more weight.
As children grow more mature and develop strong opinions about where they want to be, custody issues can take longer to sort out than those with younger children.
Working through difficult feelings about custody arrangements can be handled in an adversarial way—often to the detriment of all involved—but mediation is a very effective alternative to sorting out priorities and practical considerations.
While we can help you in litigation should the need arise, we believe mediation to be a powerful way to reach equitable solutions.
A Child’s Best Interests Matter Most
The overriding consideration regarding custody in New York and most other states is what is in a child’s best interests, but a judge will also account for the circumstances of the parents and the unique facts of the case.
So what happens when the court awards you custody, but your child expresses a strong desire to live with the other parent?
The Court Process is Difficult and Can be Costly
If it goes to the court—the least desirable way to sort things out—the judge will want to speak in chambers with the child or children, a court reporter, and sometimes the parents’ respective lawyers. Neither parent will be allowed to be present.
In the event a child’s wishes are invoked in a trial (rarely will a child appear in court, and then only in an emergency), the judge can appoint a custody evaluator to fully assess a child’s wishes and needs and can also appoint a law guardian who can serve as a child’s voice in court.
Even a judge can’t force a teenager to see a parent they don’t want to see, but the judge can encourage them to keep up a relationship with them.
Finding Common Ground Maintains Dignity in Divorce and Child Custody
Determining a custody or visitation schedule that makes sense and, more importantly, maintains the bond between child and parents over time is our top priority.
While heading to the courts is sometimes the only option, in most cases mediation is a kinder, more cost-effective means to reaching an agreement.
Handling the strong emotions in divorce requires a skilled advocate who not only has a strong grasp of family law statutes, but one who also can help navigate the family toward a healthy resolution.