Contested child custody cases are among the most difficult cases set before a judicial system. This is largely because the attorneys and judges steering the proverbial “ship” are not mental health practitioners. Additionally, the dynamics of each family unit vary greatly. Clients often want to know if their child’s expressed wishes will matter to a court. This blog will examine the current status of the law regarding a child’s express preferences.
The Multi-Faceted Best Interests Test
In order to determine the best interests of the child, the court may take into consideration a variety of factors, including the child’s wishes. However, a child’s wishes are not determinative, as it is but one factor a court may consider in determining whether to allow visitation. In fact, a court may issue a decision that is the complete opposite of the express wishes of the child.
In a recent First Department case, In re Byron M. v. Sasha A[i], the court upheld an award of three (3) therapeutic supervised visitation sessions between the father and the child; despite the child’s express wishes to the contrary. The court found that “[w]hile the child’s wishes are some indication of what is in her best interests and ‘are entitled to great weight,’ those expressed wishes are only one factor to be considered and do not dictate a certain result in determining the best interests of the child.”[ii] There was no evidence before the court that the child would be in any physical danger or that the visitation would produce serious emotional strain of disturbance to the child.
A Child’s Age and Maturity Matter
A court will also consider the child’s age and maturity when assessing the weight of the child’s wishes. The preference of a young child to not have visitation with a parent will be taken into consideration, but is not dispositive. In contrast, a teenager’s preference to not have visitation with a parent, while still not dispositive has been held to carry great weight as a teenager is more mature making his or her input particularly meaningful.
For example, in Matter of Susan LL. v. Victor LL[iii], an eight (8) year child expressed his opposition to having visitation with his father. The court noted that “[t]he preference of this relatively young child to have no visitation with the father is a factor to be taken into account in determining his best interests, but is not dispositive.”[iv] The court, despite the child’s wishes, upheld the denial of the mother’s modification petition seeking suspension of the father’s visitation. In contrast, in Matter of Coull v. Rottman[v], the court upheld a suspension of the father’s visitation where, inter alia, the thirteen (13) year old child was vehemently opposed to any form of visitation with the father. The court noted that “while the express wishes of the child are not controlling, they are entitled to great weight, particularly where the child’s age and maturity would make his or her input particularly meaningful.”[vi]
While it must be noted that other factors were also taken into consideration in determining whether to suspend visitation in these cases, it is clear that a child’s wishes will be given great weight, especially when the child is a teenager with the maturity to express his or her wishes.
Be Informed – Seek Guidance from Your Attorney
It is always best to consult with your attorney who can give case-specific advice with respect to your legal matter. We encourage you to do so. The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. Readers of this article should seek specific legal advice from legal counsel of their choice. In the event that you need legal assistance regarding matrimonial and/or family law matters, please contact Marissa Pullano at mpullano@jaspanllp.com or (516) 393-8297 or Samantha Guido at sguido@jaspanllp.com or (516) 393-8250.
[i] 2020 N.Y. App. Div. LEXIS 2262, 2020 NY Slip Op 02243 (1st Dep’t April 9, 2020).
[ii] Id. at *2 (internal citations omitted), citing Melissa C.D. v. Rene I.D., 117 A.D.3d 407, 408 (1st Dep’t 2014).
[iii] 88 A.D.3d 1116 (3d Dep’t 2011).
[iv] Id. at 1119.
[v] 131 A.D.3d 964 (2d Dep’t 2015).
[vi] Id.
[1] 2020 N.Y. App. Div. LEXIS 2262, 2020 NY Slip Op 02243 (1st Dep’t April 9, 2020).
[1] Id. at *2 (internal citations omitted), citing Melissa C.D. v. Rene I.D., 117 A.D.3d 407, 408 (1st Dep’t 2014).
[1] 88 A.D.3d 1116 (3d Dep’t 2011).
[1] Id. at 1119.