Powerful Yet Voiceless: When Can a Child Have Input in Divorce?

We are often asked "when can a child have a voice in divorce?" Children are in an odd position when it comes to divorce. On the one hand, parents often fight tooth and nail to obtain custody of their children:  parents hire lawyers, retain child custody evaluators, and devote days to court hearings, all in an effort to receive more time with their children. In this context, children have incredible power in a divorce, because their dynamic and future is a great force that demands, and receives attention.

On the other hand, children have very little power themselves when it comes to deciding where they will live. Courts prefer to leave kids out of custody hearings rather than placing them in the position of having to "decide" as between their parents. In place of a child's own preferences--which parents often manipulate and influence - courts make custody decisions primarily on the basis of what is in the child's best interests, as determined by talking with everyone involved, except the child. A common question encountered in initial meetings with a parent going through a divorce is "when will my child be able to decide where he (or she) wants to live?" The easy answer, in California, is "when they turn 18," since that is when a child reaches majority and is allowed to make their own decisions that impact their lives. Such an answer, of course, does little to actually answer the question. In practice, young children should not, in this author's opinion, ever be asked by anyone, therapist, parent, lawyer, judge, custody evaluator, ... by no one, "which parent do you want to live with?" Such a question might as well be phrased "who do you love more, mommy or daddy?" Placing a young child in that position comes very close to (if not actually is) child abuse. And yet, children are asked this question day in and day out by people who either know no better or who simply want "victory" for their personal desire, regardless of the cost.

If parents are unable (or unwilling) to agree what is best for their kids then it is left to the Judge to decide, interestingly the one person in this dynamic who knows the least amount of information and who has had the least amount of time and experience with the child; in short, the one person least capable of making that determination. And yet day in and day out combative parents thrust their own inability to decide the fate of their children onto the people around them, and of course the persons affected, the children, have very little voice in the process. This is not to say children are gagged during this process; mechanisms are available to hear from the children in the form of minor's counsel and child custody evaluators, to name but two categories of professionals who try to give voice to the kids of divorce.

Minor's counsel is a lawyer appointed by the court to represent children in a divorce case. This resource is typically employed when the judge feels that the level of hostility or tension between the parents makes their reporting of the "facts" of the dynamic involving the other parent relative to the children to be unreliable. Minor's counsel is appointed to interview the children and then to represent their interests before the court. These lawyers are usually specially trained to fill this role, are sensitive to the needs of children of divorce and have their client's best interests at heart when presenting to the court. This is important because too often we see parents arguing a position in court that actually serves their own personal interests more than those of their children.

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Feinberg & Waller, APC
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