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Having Your Child Speak at a New York City Custody Hearing

Posted on April 21, 2020

Among the most difficult and heart-wrenching parts of any divorce is child custody. Even under the best of circumstances, such as an “amicable” (uncontested) divorce, divorce is inevitably hard on children. What happens when your child has to speak in the custody hearing? It’s rare, and the reasons why it might be necessary are limited. In general, courts always put “the best interest of the child” at the forefront of all custody hearings, and most judges are not inclined to have children dragged into a messy custody battle.

Sometimes, it is the child’s preference to speak. In any case, the judge will have to be convinced that it is in the child’s best interest and, moreover, that the child is competent. While there is no specific age limitation in New York, the child should exhibit maturity and:

  • Have sufficient intelligence, understanding, and ability to observe, recall, and communicate events
  • Be able to comprehend the seriousness of an oath
  • Be able to appreciate the necessity of telling the truth

What you and your child can expect

The first thing you should know is that your child will not be trooped out in front of a large group of people: the only people present in the room will be the judge, a court stenographer and an attorney representing the child. That attorney does not represent either parent and is there solely to advocate for the child. Your child and the judge will speak “in-camera.” This doesn’t mean what’s being said is being videotaped, it means that the testimony will happen in the judge’s chambers rather than in the more imposing courtroom. Litigants (usually, the parents) are not allowed to be present. The court stenographer transcribes the interview in case it is needed for an appeal.

A short list of questions the judge may ask the child includes:

  • Simple, straightforward questions such as the child’s name, age and address
  • How their life is day-to-day with each parent
  • What kind of activities the child does with each parent
  • Whether one parent or the other spends more time with the child on homework, attending school conferences/events or extracurricular activities

Lastly, and perhaps the most difficult for parents and children, is whether that child has a preference as to where they wish to live. Typically, a child who is at least 13 can state a preference. It is still up to the judge, who will make a decision based on the best interests of the child. The judge will take into account the child’s wishes as well as any history of a parent’s substance abuse or domestic violence, each parent’s mental and physical health and, of course, each parent’s ability and commitment to provide a loving, stable home for the child.

We provide compassionate legal guidance for parents and children in custody cases

Having children speak at a custody hearing is one of the most emotionally difficult events in a divorce. We are here to help. To learn more, please contact us online or call us at (212) 349-1600 to schedule a confidential consultation to discuss your needs.