It is vitally important to include a child’s views in any custody outcome between that child’s parents. The child is the one person who will be impacted most, often having to divide time between two households, at times living out of a suitcase; having to spend significant time in cars or planes; and having to forgo certain social time or milestones to accommodate the parents’ custodial schedule. Yet, the child is typically the least-consulted person in the outcome. Both parents are able to share their views on everything from which parent is better equipped to put the child to bed at night to whether their child is able to transition seamlessly between two homes. Both parents will routinely take opposing views on their child’s adaptability and chances of success under different parenting schedules. Unless the child is struggling in other parts of life, there are not necessarily going to be teachers, coaches, neighbors, or doctors who can provide insight into the child and their view on what outcome may be best. Parents may be experiencing strong emotions about the thought of not seeing their child every day and may be feeling a great sense of loss about their changing family structure, which may shade their views on what outcome they feel is best for their child.
Why Is It important to Account for the Child’s Views?
In addition to including the most impacted family member in the discussion as a logical step to reaching a comprehensive solution, the law requires the child’s views to be considered. Domestic U.S. custody statutes routinely require that children be able to express their views or preferences. Most statutes will require the court to assess the child’s intelligence and maturity, along with whether the child’s views are freely expressed and uninfluenced by an outside force (like a parent). International treaties also account for the child’s views. The UN Convention on the Rights of the Child, which the United States has signed but not yet ratified, requires a child who is “capable of forming his or her own views” to be allowed to express those views in all matters that impact the child (see Article 12). The 1996 Hague Convention on the Protection of Children, which the United States also has signed but not yet ratified, allows treaty partner countries to refuse recognition of another treaty partner’s custody orders if the child was not provided the opportunity to be heard (see Article 23(2)(b)). The logical outcome is, if a country’s legal system does not actually account for the child being heard in custody proceedings, then other countries may find it unacceptable and refuse to recognize those custody orders. The 1980 Hague Child Abduction Convention also allows for a court to account for the child’s views at a variety of points in a case. Judges may want to determine if children view their habitual residence as having changed from Country A to Country B, if children would feel as if they would be exposed to a grave risk if returned to their habitual residence, whether the children are mature and object to being returned to their home country, and whether the children feel settled in their new country (which would only be addressed as an exception to return if one year has passed before the left-behind parent filed a return petition).
Why Must We Talk About How to Hear a Child’s Voice?
The conclusion seems logical: Judges (and other decision-makers, like the child’s parents) need to hear a child’s views to create an appropriate parenting arrangement for that child. But hearing a child is not as simple as one may think. When a child is included in a complex legal process, particularly in the United States where our legal processes are set up to be adversarial, there will be a direct impact on the child. The child may be coached by one or both parents and may be distressed about having to speak to a judge, lawyer, or evaluator. Each child will have special and distinct needs (even among siblings). The role of children in any custody proceedings will be impacted by their upbringing; health; educational and emotional needs; any experience with trauma, abuse, or violence; their family structure (siblings, adoption, etc.); and the behavior of all the people around the children. Because each child is going to differ from the next, sometimes dramatically, each child should be heard in a manner that is tailored to that specific child. This also means that some children may actually be harmed by having their views elicited. Bringing a child to a courthouse may have a long-lasting impact on that child. Forcing children to testify in court or in chambers, sit for a battery of psychological tests, or be asked if they have a preference as to their custodian could emotionally harm a child and needs to be handled carefully and with a great deal of expertise. While most U.S. courts have the same handful of ways that they elicit a child’s views, there are often no best practices on how to choose the best means of eliciting those views. This is a discussion that should be held throughout the United States in all of our family courts. Further, when you are representing a parent in a custody case, it is incumbent upon you to have this discussion with your client, the opposing counsel, and the court to design a process specific to the children in your case to safely, appropriately, and accurately hear their views.
How Do We Hear a Child’s Views?
There is a wide range of options for actually hearing a child’s views, and each child may require a different process. The options are typically broken down into two categories: processes where the child is heard directly by the decision-maker and processes where the child is heard through an intermediary.
Hearing a Child Directly
A child is typically heard directly when that child testifies in a courtroom as a witness, when the child has legal standing to intervene in the parents’ custody case, or when the child is interviewed in chambers. Each means of hearing a child directly implicates a lot of questions. The first, of course, is whether the person who is asking questions of the child (whether the judge, lawyer, etc.) has the training and experience to ask the right questions. For example, some children may say “yes” to all yes-no questions, not because the answer is “yes,” but because they do not want to say “no” to an adult. A child may try to calculate what the question-asker wants to hear and respond in turn, instead of telling the truth. Children may not want to say, “I don’t know,” but are afraid to admit that they do not have an answer. Furthermore, the child’s rights are not the only rights implicated when a child is heard directly. What about the child’s parents? Will the parents (or their lawyers) be able to ask questions of the child? If the child is interviewed in chambers, will the interview be heard/attended by the parents or their lawyers? Will it be recorded? There are some significant due process implications, particularly if something the child says causes the judge to decide for or against a parent. If a child is being questioned in chambers or sitting in an open courtroom, what rights does the child also have? Children are not typically going to be able to hire their own attorney, so should one always be appointed? Should there be limitations on what questions can be asked of a child? If there are limitations, how does that impact the parent’s ability for a full and fair examination of all information related to their case?
The reality is that interviewing a child is a highly complicated and nuanced task. Without significant training and experience, the likelihood of eliciting useful and accurate testimony may be low. This may ultimately pay off for a parent who has coached the child to say the “right things,” but it may not achieve a clear understanding of the child’s actual views without preliminary groundwork. Therefore, whenever children are directly included in the proceedings to have their views heard, there should be other, indirect processes put in place to ensure their voice is heard accurately and in a way that is least likely to negatively impact the children.
Hearing a Child Indirectly
A child can be heard indirectly through a third party, such as an attorney or a forensic evaluation, or when a mental health professional or another third party testifies about the child. The biggest problem with hearing a child indirectly is that you may not be hearing the child’s actual views but some diluted or interpreted views. Furthermore, with hearsay evidence rules, it may actually be impossible to have a third party inform a court of the child’s actual words, so the child’s views are routinely introduced through other means—the child’s grades and a teacher’s observations of the child, a therapist who treated the child and observed the child scared when being picked up by a parent, or a forensic evaluator who interviewed the child but also conducted psychological evaluations and interviewed other third parties so they could interpret the child’s words. Including some or all of these people may come at a financial cost, particularly including professionals (like doctors or evaluators) as trial witnesses.
Children may also be appointed their own lawyer. The lawyer could take several roles, including an advocate for a child’s stated wishes or an advocate for what the lawyer determines (after an independent investigation) is in a child’s best interests. The lawyer also has limitations. The lawyer is not a witness; the lawyer is an advocate. While some child’s attorneys will file pleadings with the court that elaborate on the position they would argue if the case goes to trial, as attorneys they are obligated to put forth a case, including witnesses and exhibits. If the lawyer is appointed early enough in the proceeding, the lawyer should be able to conduct a thorough independent investigation into the child’s situation, speaking with numerous third parties, meeting with the child several times, talking to the parents, and examining the child’s records. This can help a trained child’s attorney interpret the child’s words and help the child’s attorney craft the best case-in-chief, with the proper witnesses and exhibits, from the child’s perspective, to achieve the outcome that best exhibits the child’s views. The lawyer can also serve as a conduit for the child. In any situation where the child’s views are elicited, that child is going to have questions. An independent person is needed whom children can trust to discuss matters. The child’s attorney is best situated to be in this role. If the child expresses concern of abuse, the child’s attorney can initiate an emergency request on behalf of the child to remove the child from one of the custodians. If children have questions about testifying, their attorney can take them to the courthouse and give them a tour and help them visualize what it would look like. The child’s attorney can communicate with the parents’ counsel to devise the best process to question the child if the child will be interviewed in court. The child’s attorney can share thoughts with the parents on what they may need to do to better work with the child. They can participate in mediation and negotiation to try to broker a settlement for the child that accounts for the child’s views. The drawback, as always, seems to be whether there are skilled child’s attorneys practicing in your jurisdiction and the ultimate cost of including a third lawyer in the litigation.
Considerations Before Choosing a Way to Have a Child’s Views Elicited
Given the wide range of options to hear a child’s views, and the uniqueness of each child and each family, lawyers have their work cut out for them in trying to determine the best method for hearing a child. Be sure to look at the child’s age, maturity, health, and any special needs (medical or emotional). Assess whether the child has experienced any trauma, abuse, or suspected coaching. Is the child preverbal or nonverbal? If the child is verbal, what are that child’s communication capabilities and style? The lawyer must assess the direct impact on children of including them in the process—what will provide the best and most accurate information while protecting the child most? Lawyers should also try to determine whether they are simply trying to elicit the child’s views, or if there is a need for more intervention, such as someone who can guide the child, inform and educate the child, and be there next to the child who is directly included in the proceedings.
Regardless of who speaks with the children to elicit their views, the lawyer should analyze the training and background of those individuals. Do they have training in child development? Can they interpret the child’s words and nonverbal cues? What children say is rarely what they mean. In fact, adults rarely do, either. It is almost always necessary to have more background information about children and their circumstances, preferably from an independent source (and not your client) in order to truly understand the children’s views, and be able to put on the best case with witnesses and exhibits to help the fact-finder make the best decision possible. Finally, and perhaps the most often-overlooked issue, is understanding that by not having the child’s views heard (including not having the child’s views heard in a very specific way), your custody order may lack legal recognition in another country. For any child who may travel overseas, this could have a significant and long-lasting impact.
Any children who are the focal point of a custody case should have their views heard, but there are a lot of complicating factors that must be considered when choosing the best, most fair and accurate way to hear their views, and to ensure the children are best protected. It is easy to say that every child should have a good, competent lawyer who can then obtain help for the child in the form of evaluations and support, but this often is thwarted by significant cost. Lawyers must make an assessment on how best to include the views of their client’s child in the entire process, and tailor that process specifically to that child.