When New York parents divorce, a common worry is whether their children have any voice in the custody decisions. The short answer is: sometimes. Under New York family law, the court’s primary concern is the best interests (interest of the child) of the child. Judges look at many factors – such as each parent’s ability to provide a stable home, the mental and physical health of everyone involved, any history of abuse or neglect, and even siblings’ needs. Children’s wishes are just one factor among many. In plain terms, a child’s preference can be heard, but it doesn’t automatically decide the outcome.
New York judges follow the “best interest of the child” standard. This means the judge balances everything (education, health, routines, safety, parental cooperation, etc.) to decide custody. A child’s stated preference only comes into play if the child is old enough to make an intelligent decision. In practice, teenagers (especially those around 14 years of age or older) can carry more weight with the court. Younger children’s opinions are usually not decisive. Even when a teenager clearly says “I want to live with Mom” or “I’d rather stay with Dad,” the judge still asks: is that child mature enough? What reasons did they give? Judges have seen parents coaching or influencing children, so they look closely at why the child wants what they want.
Every custody decision is about what’s best for the child first, not just what the child says.
Best Interests of the Child
In the United States, and in New York State in particular, child custody laws emphasize the child’s welfare. New York courts will appoint either a single or joint custodian based on what serves a minor child’s well-being. The law lists many factors: for example, whether each parent has been the primary caregiver, what living situation offers the most stability, and even whether both parents encourage a good relationship with each other. The child’s physical safety and emotional needs are paramount. As one guide explains, New York judges “must follow the ‘best interest of the child’ standard to ensure a child’s health, safety, and overall well-being”.
Importantly, the child’s own views can be part of the best-interest picture if the child is of sufficient age and capacity. The New York Courts have noted that they will consider “the child’s wishes (if the child is deemed to be of sufficient age and maturity for such wishes to be given weight)”. In other words, a judge won’t ignore a 14-year-old’s reasoned preference. But the child’s opinion will be weighed alongside everything else: each parent’s housing, work schedules, the child’s school and community ties, and yes, the mental and physical health of both parents. The goal is to pick a plan that best protects the child’s interests, not simply the loudest voice.
How New York Courts Treat a Child’s Preference
So how much say does a child get? The law doesn’t say, “If you’re 14, the judge must do exactly what you say.” Instead, judges have discretion. They may ask a child which parent they prefer if they believe the child “is of sufficient age and capacity to form an intelligent preference”. If that time comes, the judge (or a court-appointed evaluator) typically meets the child alone or asks a neutral professional for a confidential report. The key phrase in New York law is “sufficient age and capacity.” This means the judge must believe the child truly understands the situation. A 5-year-old who says “I want to live with my best friend” wouldn’t count. But a thoughtful 16-year-old who says “I’m settled with Mom’s school district and have friends here” might carry weight.
Experienced family law attorneys in New York City know there is no strict age cutoff, but in practice, older teenagers have more influence. As one custody lawyer notes, courts often give “more weight” to the preferences of an older teen, recognizing they can “decide based on sound reasoning”. Many attorneys cite 14 years old as a common threshold where a child’s voice is taken seriously, though even younger children can sometimes speak if they’re mature. Conversely, an infant or toddler simply cannot form a reasoned preference, so the judge will skip that factor altogether.
It’s also true that a child’s stated desire does not bind the judge. Even if a teenager’s mind is made up, the court can still award custody to the other parent if it believes that is ultimately safer or more stable for the child. For example, if 15-year-old Alice insists on living with Dad but Dad has a history of drug problems or lives far from her school, the judge might rule to keep Alice with Mom despite the preference. The court must balance the reasonableness of the child’s choice with overall safety and stability.
Guardian ad Litem and Child’s Attorney
In a contested custody case, New York judges often appoint a neutral advocate for the child. Depending on the county and court, this might be called a Guardian ad Litem (GAL) or an Attorney for the Child (sometimes historically a “law guardian”). The GAL is usually a lawyer, social worker, or court-trained advocate whose only job is to represent the child’s best interests. They might interview the parents, teachers, or counselors, and critically, they often talk privately with the child. However, the GAL does not simply do whatever the child says. Cornell’s legal guide explains that a guardian ad litem makes recommendations “based on what is best for the child”, rather than just passing along the child’s stated preference.
If a child is appointed an attorney or GAL, they will assess whether the child is of sufficient maturity to express a preference. The GAL will report to the judge, often saying things like: “10-year-old Johnny said he wants to live with Dad because he likes Dad’s car. But Johnny also loves his school and soccer team with Mom’s help. He didn’t seem unduly pressured by either parent.” Judges rely on these reports as part of the whole picture. In short, a GAL or attorney makes sure the child’s voice is heard in court, but always filtered through the lens of “what arrangement truly serves this minor child’s welfare.”
Custody Types: Legal vs. Physical
It helps to understand legal custody and physical custody. Legal custody means decision-making power: who decides where the child goes to school, their medical care, religion, etc. Physical custody means where the child actually lives day-to-day and the schedule of visitation if shared. Judges can award sole or joint legal custody (meaning one parent or both parents make decisions together) and primary or joint physical custody. A child’s expressed preference usually concerns physical custody – for example, saying “I want to stay with Mom” – because that’s about where they live. But it can also loosely relate to which parent they feel more comfortable with for making decisions.
In practice, a teenager’s preference may influence physical custody more. For example, if a 15-year-old argues convincingly that living with Mom works better for school and activities, the judge might give Mom primary physical custody. Legal custody, on the other hand, often becomes joint unless there’s a strong reason otherwise. (For more on the different custody arrangements, see our Types of Child Custody page.)
Other Factors in Custody Decisions
Remember: no single factor wins the day. A child’s choice is weighed against all the factors in the best-interest analysis. For instance, New York courts will also consider each parent’s mental and physical health, their ability to provide a safe, loving home, and even practical matters like work schedules and proximity to school. The child’s adjustment to home, school, and community, as well as the stability of each home environment, also matter. If a parent has a history of substance abuse or domestic violence, that will greatly overshadow any child preference. On the other hand, if one parent has always been the primary caregiver (the custodial parent) and has provided continuity and comfort, courts tend to favor keeping the child in that familiar setting.
Courts also look at whether each parent encourages the child’s relationship with the other parent. Generally, encouraging healthy visitation with the noncustodial parent is seen favorably. The guardian ad litem (if appointed) may report on whether the custodial parent is supportive of the child’s time with the other parent, which can influence the judge’s view of each parent’s cooperation.
In New York State, the family court explicitly recognizes that when one parent holds primary physical custody (the custodial parent), the other parent usually seeks visitation. The judge will apply the same best-interest standard to visitation decisions, considering all these factors again. For example, if the custodial parent wants to move out of state with the child, the non-custodial parent can contest it by showing how the relocation might hurt the child’s relationship with them. Even here, the child’s preference might be noted (e.g., the child doesn’t want to move), but what really counts is whether the move is in the child’s best interest.
What Parents Should Know
If your child is going through a custody case, here are some key points:
- Stay Child-Focused. Courts don’t like it when children feel caught in the middle. Avoid discussing legal battles in front of kids or asking them “who do you love more?” Questions to your child should be age-appropriate and open-ended, like “How are you feeling about school and home?” rather than pressing “Which parent do you want to live with?” Pushing or coaching a child can backfire, as judges are trained to spot parental influence.
- Support Both Parents (if Safe). Showing that you encourage the child’s relationship with the other parent can actually strengthen your custody position. A court sees that as prioritizing the child’s best interest. If you speak negatively about the other parent, a judge may see that as alienation, which can be held against you.
- Maturity Matters. Recognize that younger children may not fully grasp the implications of switching homes or custody. Be patient in explaining things and ask them about their feelings in a gentle way. If your teenager does share a preference, listen to their reasons carefully — but don’t expect the judge to simply rubber-stamp it.
- Be Honest About Your Situation. If you have concerns (for example, you think the other parent is unsafe or unreliable), gather evidence. New York courts consider the actual living situation: stable housing, school continuity, and each parent’s mental and physical health are all on the table. The better you document your own fitness as a parent, the more the child’s preference, if any, will just be one small piece of a larger puzzle.
- Consult Professionals. Sometimes parents meet with child psychologists or custody evaluators who can give a neutral view of the child’s needs and wishes. If the court appoints a Guardian ad Litem or Attorney for the Child, cooperate fully. Their insights into what the child says and needs can be influential. (Remember, a GAL is not a “super-parent” – they only make recommendations about the child’s best interests.
- Plan for Mediation if Possible. Courts in New York encourage parents to try mediation before or during litigation. During a divorce mediation, a neutral third party helps parents negotiate custody and visitation agreements. Mediation can be much less stressful for children, and it gives parents more control. If both parents are willing, a mediated agreement that even considers the child’s input can be tailored for your family’s unique needs. (Our firm has strong experience in divorce mediation and trial advocacy, so we can guide you through whichever path works best for your situation.)
New York City, Long Island and Beyond: We’re Here for Your Family
Custody and divorce laws can feel like complicated family court or Supreme Court jargon. Our family law team breaks it down in everyday language and protects your children’s future. Whether you live in the City of New York (Manhattan, Brooklyn, Queens, Staten Island, the Bronx) or on Long Island, we know the local courts and family judges. We emphasize a child-centered approach: helping parents understand how interests of the child drive custody decisions. And when disputes get tough, our trial lawyers have a strong record in custody litigation – ensuring a parent’s voice is heard loudly and clearly in court, while still keeping the child’s welfare front and center.
Ready to talk? We can explain how child custody and visitation work under New York law and help you weigh your child’s wishes against the full custody picture. See our Child Custody Overview for a starting point on custody and visitation issues. If you have questions about divorce, check out our Divorce Overview or How to Prepare for Divorce in New York. To discuss representation, learn why hiring a knowledgeable New York City divorce attorney or a skilled child custody attorney can make all the difference. We also have local offices in Brooklyn and Manhattan to serve you.
Pro Tips for Parents
- Talk Carefully About Divorce. Reassure your child that both parents still love them. Emphasize that the legal process is about finding the best routine, not a choice of loving you less. Keep adult conversations about custody out of earshot as much as possible.
- Ask, Don’t Pressure. If you do ask your child for their thoughts, use open-ended questions. For example, “What’s your favorite thing about how we do dinners?” or “How do you feel when you visit Dad on weekends?” rather than “Who do you want to live with?” This helps the child explain feelings without feeling forced to pick sides.
- Stay Calm During the Process. Children pick up on stress and conflict. If you’re upset or arguing in front of them, they may become anxious. Show maturity and composure in front of the child, even if tensions are high with the other parent.
- Keep the Routine. Try to maintain your child’s school, extracurriculars, and friendships as much as possible. Judges look at stability, so sticking to regular schedules (homework time, bed time, etc.) can demonstrate that you’re focused on the child’s well-being.
- Document Your Involvement. Keep records of your involvement in the child’s life – school events, doctor’s appointments, extracurriculars. If custody is contested, showing that you’ve been actively involved helps establish you as a caring, responsible parent.
- Know the Law, But Show Flexibility. Remember that while the law allows for a child’s preference, courts also value cooperation. A parent who stubbornly says “I won’t let them see the other parent” or refuses reasonable visitation may actually harm their case. Whenever possible, demonstrate that you prioritize your child over winning a fight.
- Stay Informed. New York’s family court system is complex. Use reliable resources. We recommend our Family Law Overview for basic concepts. And if you ever get stuck, get legal advice. An experienced attorney can guide you on whether your child’s preference will be a key factor, or just a small piece in the custody puzzle.
Need Help Navigating Custody and Your Child’s Wishes?
At Brian D. Perskin & Associates, we understand how emotional and complex child custody cases can be—especially when your child’s voice is involved. Whether you’re in Brooklyn, Manhattan, or Long Island, our experienced family law attorneys will advocate for your parental rights while keeping your child’s best interests front and center. From divorce mediation to high-stakes custody trials, we’re here to help you make confident, informed decisions.
Schedule your confidential case evaluation today and let us help you protect what matters most.