Depending upon the children’s ages and their capacity to understand what is going on in their family, they could have some input as to where they primarily reside. In most cases, when there are contested issues of custody and parenting time, the judge will appoint an attorney for the children, previously known as a law guardian. The attorney is knowledgeable regarding family law issues and represents the children involved, focusing on their best interests. The children are interviewed and spoken to at various times during the case by their appointed attorney, who then reports this information back to the court.
Judges can speak with the children in their chambers with the attorney for the children present as well as the court reporter, which is called an “in camera” interview. The attorneys for the parties are not present and the judge asks the children questions about things that are going on at home. This provides the court with insight as to whether or not the children are making decisions free of any duress or pressure from either parent. The judge can also determine if the children are old enough to even make such a determination. Generally speaking, it’s a continuum and as the children get older, they’re more apt to be respected with regard to their wishes. The answer to this question depends upon many factors including the children’s ages, what’s really going on in the house, and what the attorney for the children believes and communicates to the court that the children want. Additionally, if the children are very young, the attorneys will communicate to the court what is in the best interest for the children.
Robert Pollack is an experienced divorce and family law attorney in Long Island, New York. Contact The Pollack Law Firm, P.C., to set up a free initial consultation.