Can a Child Choose Which Parent to Live With in New York?

Many states are rumored to let a child of a certain age choose where to live. New York is not one of them. There is no statute that hands decision-making power to a child at any age. Instead, every custody decision in New York is governed by a single overarching standard: the best interests of the child. The New York Court of Appeals confirmed long ago, in Eschbach v. Eschbach and Friederwitzer v. Friederwitzer (both decided in 1982), that no single factor controls and that the trial court must weigh the totality of the circumstances.

A child’s preference is simply one of those circumstances. It does not become a trump card at 13, 16, or any other birthday. A custody order remains legally binding until the child turns 18, regardless of how strongly the child feels in the meantime.

While a child cannot choose which parent to live with outright, the court does listen. How much weight a preference carries depends largely on the child’s age and maturity. The wishes of a thoughtful 16-year-old who can articulate clear, child-centered reasons will generally carry far more weight than those of a 7-year-old who simply wants to live wherever the new puppy is.

Judges also look closely at the reasons behind a preference. A court will weigh factors such as:

• Maturity and reasoning. Can the child explain a genuine, considered reason, or is the preference impulsive or based on short-term rewards?
• The source of the preference. Has one parent pressured, bribed, or coached the child? Evidence of parental alienation can cause a court to discount a stated preference entirely — and to view the offending parent less favorably.
• Stability and continuity. Which home offers the more stable environment, consistent schooling, and established routines?
• The quality of each relationship. The child’s bond with each parent, siblings, and extended family.

In short, a preference is a starting point for inquiry, not the end of it. The court’s job is to understand the preference in context and decide what arrangement genuinely serves the child.

Parents are often relieved to learn that their child will almost never be made to testify in open court about which parent they prefer. New York judges instead rely on a tool known as a Lincoln hearing, named for the Court of Appeals decision Matter of Lincoln v. Lincoln (1969).

A Lincoln hearing is a private, in-chambers conversation between the judge and the child. The parents are not present, and neither are their attorneys. Typically only the judge, the child, the attorney for the child, and a court reporter are in the room. This protected setting allows the child to speak honestly without the pressure of doing so in front of either parent, and without feeling they have to “choose sides” publicly.

In most contested custody cases in Erie County and across New York, the court appoints an attorney for the child (AFC), sometimes still called a “law guardian.” The AFC is the child’s own lawyer — not a neutral evaluator and not an arm of either parent.

Under the Rules of the Chief Judge (22 NYCRR § 7.2), the AFC is generally required to advocate for the child’s expressed wishes when the child is capable of a knowing, voluntary, and considered judgment. There is an important exception: if following the child’s stated wishes would likely place the child at risk of imminent, serious harm, the AFC may instead advocate for what protects the child. This is why the AFC’s position can be so influential — a mature teenager’s consistent preference, voiced through their own attorney, is a meaningful factor a judge will not lightly disregard.

This is where law and reality meet. Legally, a custody order is in force until the child turns 18, and a 16- or 17-year-old cannot simply cancel it. Practically, however, courts and parents alike recognize that it is very difficult to physically force an older, determined teenager into a household they are refusing to enter. Judges are aware of this, and a mature teen’s strong, stable preference therefore tends to carry significant practical weight, even though it is not technically the deciding factor.

That does not mean a teenager should be encouraged to defy an order. Doing so can backfire, harm the teen’s relationship with the other parent, and reflect poorly on the parent who allowed it. The better path is to bring a genuine, well-supported request back to the court through a proper modification rather than letting a teenager take matters into their own hands.

What if a custody arrangement is already in place and your child now says they want to live with you? A child’s changed preference can support a request to modify custody, but on its own it is rarely enough. To change an existing order, New York requires you to show a substantial change in circumstances and that the proposed change serves the child’s best interests.

A maturing child’s evolving, well-founded wishes — especially when paired with other developments such as a parent’s relocation, a change in work schedule, or a shift in the child’s needs — can absolutely be part of that showing. The key is presenting it properly, with credible evidence rather than a coached statement. Summer, when schedules loosen and families reassess routines, is a common time for these questions to surface.

Whatever your child’s age, the worst thing you can do is turn them into a decision-maker in your divorce. Children who are asked to choose between parents carry that weight for years. A few principles serve families well:

• Never ask your child to pick a side or report back on the other parent’s household.
• Do not coach, script, or pressure your child before a Lincoln hearing or a meeting with the attorney for the child — it is usually obvious, and it damages your credibility.
• Reassure your child that the adults, not they, are responsible for the decision.
• If your child has strong feelings, raise them with your attorney and, where appropriate, the court — not by leaning on the child to act.

Protecting your child from the conflict is not only the right thing to do; courts notice and respond favorably to parents who do it.