CHILDREN'S PREFERENCES:
In Custody Disputes
(Written by Denise Motter, this article originally appeared in the August 2, 2005 edition
of the KIRK & SIMAS Family Law Reporter — Volume 5, No. 1)
It is common in a custody dispute for one parent, or for both parents, to argue, "The child wants to live with me and not with the other parent." However, raising this argument in litigation is a double-edged sword; it can both help and hurt the parent’s position in the eyes of the Court.
It is agreed among most experts, family law attorneys and judges that children are hurt emotionally when they are brought into their parents’ dispute and asked to take sides. A child who is coached or encouraged, directly or indirectly, is forced to choose one parent over the other, and to betray the "out parent." Studies show that this betrayal can negatively affect a child’s developing sense of self worth and interfere with the child’s ability to develop healthy relationships with the opposite sex as an adult. In addition, if a child feels forced or encouraged to betray a parent, that child’s relationship with both parents can be negatively effected.
Therefore, the court may question the motives of a parent who brings a child to court, asking that child to tell the judge which parent’s custody is preferred. The parent may have put "winning" the case above the psychological well being of his child. On the other hand, there are circumstances where a child’s view is important to the Court’s decision. Sometimes, important information can be secured from no one other than the child. As an example: If the child has witnessed or been the victim of verbal or other abuse, the child’s words may be the only way to get this information to the Court. A parent cannot merely repeat the child’s words and report; that could be anticipated to be challenged with a "hearsay" objection. If one or both parents are saying upsetting things to a child, only the child can reveal this information. Other methods of securing a child’s thoughts and preference without putting the child on the witness stand, include:
- An Attorney may be appointed to represent the child.
The attorney will speak with the child in the attorney’s office or the child’s home or school and offer recommendations to the Court relative to custody. The mental health professional issues a written report to the Court. If either party disagrees with the professional’s conclusions or recommendations, that party may bring the professional to court for cross examination.
- The child meets with the Judge in Chambers.
If a child is adamant that he or she wants to "talk to the judge," some judges will meet with the child, usually in he judge’s chambers (office) as opposed to the open courtroom. The meeting may include only the judge and the child, or may also include a court reporter, the child’s attorney, or all attorneys involved in the case. The goal of this meeting is for the judge to assess the child’s request, underlying reasoning, and thought process. It also gives the child an opportunity to "be heard," even if the judge’s orders do not conform to the child’s request.
When listening to a child, the Judge, the child’s attorney, or the mental health professional will consider a number of factors in determining whether or not to honor the child’s stated preference:
- The child’s competency. How well the child seems to understand the situation and ramifications of his stated preference.
- The child’s credibility. If the child states reasons that seem unlikely, such as telling the evaluator that his mother never attended his baseball games, when his coach says she has never missed a game or practice, there would be some question as to whether or not the child was telling the truth.
- The child’s overall development and cognitive functioning. An eight-year-old may not be able to truly understand the impact of the decision; an older child may not be able to articulate why the change is warranted.
- The child’s past history of making choices. The child may have a history of poor grades, problems in school, or trouble with the law, that would give the evaluator concern as to whether the child is making good choices in other areas of his or her life.
- Evaluation interference. The child’s parent may be pressuring his or her child to support their request for custody. A parent may earnestly convince the child that the parent will be heartbroken or "lonely" is the child doesn’t state a certain preference. It is not unheard of for a parent to promise to buy the child a video game system, a car, or suspend chores, if the child expresses that parent’s custody.
- The child’s life experience. A child may find that at one parent’s home, he must do homework, empty the trash and go to bed at a reasonable hour while, at the other parent’s home, there are no restrictions. A child may have developed a close relationship with a parent, stepparent or sibling.
These and many other aspects of childhood, may affect the child’s stated preference. Some guidance is offered in Family Code §3042(a), which addresses a child’s preference, stating: as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody.
If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody. The question is often raised, "What is sufficient age?" Usually, the Court looks to a child in middle or high school as having sufficient ability to form an intelligent, well-thought out decision. However, this is not always true.
In a couple of cases, in which I have represented parents or children, junior high school boys spent most weekends or vacations with their respective fathers and the school weeks with their mothers. In each case, the child avowed that he wanted to live with his father and "switch schedules." However, when asked about losing the weekend and vacation "fun" time with the father, the child clearly had not considered that aspect. In each case, the boy wanted to extend the "fun" times to the school week, not recognizing that even with his father, the school week would still involve homework, chores and piano lessons. In none of these particular cases, was the boy’s stated preference honored.
So, in summary, in litigation, citing a child’s preference relative to custody can be a very touchy issue that must be approached with a detached view that considers the pros and cons of litigation. A court considering a child’s request may question whether the child has demonstrated a mature analysis of the situation and has been the subject of parental interference or pressure.
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