Legal Question in Family Law in New York

Can Child Decide Custodial Parent?

I ''share'' custody of our three children, ages 15, 13, 8. It is a true 50:50 arraingement. I pay an agreed upon amount of child support based on a formula that takes into account our income differential, state mandated support percentage, and is adjusted yearly.

My children are dissatisfied time spent with their mother (lifestyle issue, she is gay AND she is moving in with her partner outside the kid's current school district). The two older ones have expressed an interest in moving in with me ''full-time'', visiting their mother every-other-weekend and one evening a week. Mom is refusing to allow this.

Questions (first being most important):

1. At what age can a child decide which parent they prefer to live with?

2. Must this be court ordered or can the child just move if the ''receiving'' parent agrees?

If you hvae time and it is allowed, additional questions:

3. If they do move in, do I have to petition the court to reduce child support or can I just downgrade based on the income formula and the state-mandated support ''rate'' (currently 29% of gross after FICA) to that appropriate for the number of kids (2) I will have full time?

4. Can *I* collect child support from her?


Asked on 6/02/02, 11:55 am

3 Answers from Attorneys

Amy L. Finch, 845-362-0387 Amy L. Finch, Attorney and Counselor at Law

Re: Can Child Decide Custodial Parent?

You can absolutely to to court, and petition for a custodial change. That doesn't mean it will be granted, but it could be. It is based on the "best interests of the child" which is not a precise standard.

The wishes of the 15 year old would be most respected in court, but the Judge does not decide solely based on what the teenager wants. (What adult does?) It will be one factor in the decision.

Similarly, the wishes of the 13 year old will be taken into account, but will only be one factor in the decision.

The wishes of the 8 year old will not weigh heavily in the judge's decision.

In order to win a custody case, you will have to show why it is in the children's best interest to move to your home full time. Staying in the same school district will be a part of it. I do not believe the mother's sexual orientation should not be a part of the decision, but a conservative judge might consider it. You will still need additional reasons it would be better for the kids to live with you.

The child support would change. Since it is theoretically possible that one child would stay with her, and two come to you, I cannot tell you how the child support would work out at this time.

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Answered on 6/03/02, 10:42 am

Jonathan J. Braverman Jonathan J. Braverman, Attorney & Mediator

Re: Can Child Decide Custodial Parent?

While it is commendable that you are there for your children, you should be careful not to denigrate their mother to them. Without seeing the divorce judgment and stipulation of settlement, etc., as well as learning other facts from you during a confidential consultation, I cannot give you definitive advice, except that you should refrain from resorting to self-help.

Either negotiate a modification agreement with your ex, or petition the court for one.

If you wish to discuss this with me privately, please call to schedule a consultation: (516) 741-7799. I practice in NYC and Long Island.

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Answered on 6/02/02, 3:35 pm
John Hayes The Law Office of John M. Hayes

Re: Can Child Decide Custodial Parent?

As a grossly general rule of thumb, it is probably fair to say that the Family Court will be somewhat more apt to give "some weight" to the expressed preference of a child of 13 or more years of age. However, like everything else in the Family Court, there are 1/2 dozen factors that have a role - - most significantly, the prevailing philosophy of the judges in your County.

It seems to me that the most sensible course of action would be for you to petition the Family Court. If you "arrange" it so the children just stay with you beyond some normal 'switch point' there is, one supposes, some likelihood that the mother will petition the court, alleging that you've violated orders, etc.

... given the "sketch" of the circumstances you've provided, it sounds to me as though you can articulate the particulars of the desired end result and articulate the reasons why AND it sounds as though you can do that without having to resort to ranting and raving.

Likewise with the support issues: if you "unilaterally" let the children move in and "unilaterally" cut your support payments, the chances are you'll end up in court on a petition alleging that you have violated orders, etc. - - why set yourself up to have the role of "bad guy" assigned to you? And, yes, if the children lived with you full time, or 'more time', you can also seek support from their mother.

As noted above, an awful lot depends on where you are & the local court's "operative philosophy". You would be well-advised to talk with an attorney about that. If you doubt that you can afford to hire an attorney, you should At Least contact the Bar Association in the county where you live to see if they have a referral program. They probably do. Through this program you can arrange an "initial consultation" with an attorney experienced in these issues for a very minimum payment.

You would be under no obligation to hire that attorney.

If you know that you cannot afford an attorney and if you are "poor enough" you would be eligible for assigned counsel on a case involving custody; but you would have to file your petition first.

Good luck.

Regards, etc.,

J.M. Hayes

>>--> The foregoing amounts to musings and observations based on some years familiarity with the 'day-to-day' operation of the law with regard to the issues involved In The Most General sense; my remarks should not be thought of as "legal advice and counsel" in the formal sense of that phrase, since there is, in fact, no 'attorney / client' relationship existing between us. <-<<

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Answered on 6/02/02, 5:05 pm

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