11/23/2012 03:47 am ET Updated Jan 22, 2013

Who Gets The Kids?

As a family law attorney in New York, one of the questions I am asked on a near daily basis is "At what age can a child choose which parent he or she wants to live with?"

Parents may be surprised to learn that a child as young as ten or eleven can express a preference to live with one parent over the other, and this preference will likely be given great weight in a custody proceeding. Given the gender neutral laws that exist in most states, and the fact that most households have two working parents, the issue of "Who gets the kids?" is up for grabs by both parents. Moreover, as we all know, the issue of custody directly impacts the issue of child support. It goes without saying that this is a great motivator for both parents to "fight" for custody.

In New York custody proceedings, courts have held that a child's preference for a particular parent -- while a factor to be considered -- cannot be determinative. In weighing the child's expressed preference, "the court must consider the age and maturity of the child and the potential for influence having been exerted on the child." (Eschbach v. Eschbach)

A teenager (or even a preteen) who has strong feelings against living with a parent and who chafes against the discipline, curfews, or household rules of that parent will often make those feelings known and seek out alternative living arrangements. In divorce and custody cases, older children know that they have a choice with regard to who they live with. Not surprisingly, these children often choose to live with the more permissive parent, i.e. the parent that allows a later curfew, has less stringent rules about homework, chores, or who is more generous with cash.

Courts have recognized that "the desires of young children, capable of distortive manipulation by a bitter, or perhaps even well-meaning, parent, do not always reflect the long-term best interest of the children." (Matter of Nehra v. Uhlar) For this reason, in New York, children under the age of ten or eleven are not allowed to choose which parent they want to live with. The Court will determine the best interests of the child based upon a host of factors: which parent will serve the physical, academic, emotional, financial and psychological needs of the child.

With older children and teenagers however, it is another story. Teenagers can write their own ticket with regard to custody and visitation schedules. Judges (who are invariably parents themselves) do not force teenagers to spend time with a parent they do not get along with. As a mother of four (including two teenagers), I can attest to the fact that teens are a force to be reckoned with. Even in intact families, teenagers are notoriously fickle and self serving, and their feelings towards a parent can be easily swayed. I have handled many custody cases with teenagers which have been influenced by which parent bought the child a new car or iPhone. A teen will decide that Dad is easier to live with because he looks the other way with regard to occasional marijuana use and doesn't care about chores. Or Mom is more forgiving about "Cs" and "Ds" on the report card, and is very generous at the mall. In the mind of a preteen or adolescent, these are key factors in making the decision.

Parents, be guided accordingly.