The custody case may be the most contentious part of your divorce. Emotions run high because your children are so important to you and because the nature of this portion of the case is so deeply personal. It hinges on your individual behavior, connections, and lifestyle. It can start to feel as if the entire thing is about you and your spouse. However, all of this is investigated to determine what is best for your child. Part of that inquiry is actually about your child's opinion.
When a Child's Opinion is Considered
New York courts determine your custody case based on what is in the best interests of the child. There are many factors the court must consider to determine their best interest. One of them is the child's preferences about custody, depending on the age and maturity of the child. It's important to note that the child's opinion is not determinative, but is merely one factor the court must consider.
There is no hard and fast rule about the age at which the court considers a child's opinion. However, most New York courts will consider a child's opinion when the child is over age 13 and is of sufficient maturity to understand the situation. It's possible that a younger child who is exceptionally mature could have their opinion considered.
It is also possible that an older child might be deemed not mature enough to offer an opinion. If a child is sufficiently mature, typically the older they are, the more weight their opinion is given. Thus the viewpoint of a 17-year-old will more often have greater importance than that of a 13-year-old.
The Role of the Law Guardian
No matter the child's age, their position is given a voice by the appointment of a law guardian. This is an attorney appointed by the court to represent the child in the case. The law guardian meets with the child and may meet with the parents and visit the homes. They appear in court as an advocate for the child and can present evidence and ask questions as the other attorneys do.
The law guardian can either take the position the child expresses to them or to make an independent determination as to what they feel is in the child's best interests and advocate for that. However, they arrive at their position; the law guardian works to convince the court of their stance.
Court Appearances by the Child
You may wonder if your child will have to testify in court. In New York, children do not testify in open court. Instead, the court may conduct what is called an in camera interview with the child. The child, escorted by the law guardian, meets with the judge in their chambers or a conference room. The judge simply talks with the child and asks gentle questions in a casual, informal setting. A court reporter is present, recording the entire conversation. However, the transcript of that proceeding is not available for the parents or their attorneys so that confidentiality is maintained.
It's up to the judge to decide if they want to conduct an in camera interview. The parent's attorneys can request one, but the ultimate decision is at the court's discretion. Judges may wish to see a child of any age in camera simply to get to know them and to observe them, even if they are not old enough to have an opinion the court will consider. The older the child, the more questions the judge might have. If a child is over 13, the judge may ask them which parent they want to live with.
As a parent, it's normal to feel concerned that your child is being placed in this position, however in camera interviews are generally very short, often ten to 15 minutes. The judges have experience conducting them and are warm and friendly to the children. The law guardian, whom your child has hopefully met, is with them, and sits by their side. You may accompany your child to the courthouse but will wait in the waiting room during the interview. The interviews tend to not be traumatizing (unless your child has special needs to address or concerns).
How to Talk to Your Child About Their Role
A divorce or custody case places a tremendous amount of stress on your child. They internalize everything that is happening and often blame themselves for the end of the marriage for their parents fighting. It's important that your child understand that the outcome of the case is not up to them. They do not get to decide what will happen, and the burden is not on them to make this work out the way you want.
If your child will be talking to the judge, tell them to be honest. Downplay the situation and say the judge just wants to meet them. Assure them they can't say anything wrong, and they aren't in trouble and won't be in trouble. Be very clear that they are not "testifying" or appearing in court. They're going to have a short talk with the judge who just wants to meet them and say hello.
What Not to Do
It's tempting to try to rehearse your child before they meet with the judge. This always backfires because the judge is a skilled interviewer and often hears, "Mommy told me I had to say X," when asking the right questions. More subtle attempts to influence your child also fail.
For example, promising your child a puppy, a horse, a new gaming system, or other desired items when the case is over is also regularly revealed in the meeting with the judge. Do not express your fears, frustration, or worries to your child about this meeting, because this will only make them nervous. Present a calm and relaxed exterior.
Your child's opinion is an important piece of the custody case but is not the only factor the court will consider. Working with an attorney experienced in complex custody cases will improve your position and ensure you present a complete argument.