Article Twelve of the United Nations Convention on the Rights of the Child declares that all children have the right to form their own views and to express themselves freely in all matters that impact their families and their lives. In particular, our child support attorneys know that children old enough to form views and express themselves should be allowed to speak in hearings that will impact their family, their living arrangements, and their future, either on their own or through adults who are representing them. The right of children to be heard, especially in custody proceedings, is finding increasing acceptance in family courts in all fifty U.S. states. If you and your child or children become involved in a divorce or in a post-divorce child custody dispute, retain the legal counsel you need at once by contacting our trustworthy child support lawyers, and in northwest Indiana, speak with an experienced Lake County child support attorney.
Today, while a child’s feelings and opinions cannot be the final say in a child custody matter, most family law judges want to at least consider a child’s feelings and opinions when making a child custody determination. It wasn’t always so. Under the Roman Empire, children were simply the property of their father, and a father could even sell his children into slavery if he liked. Mothers had no legal rights at all regarding their children. Under English common law, fathers still had predominance, but they were at least legally obliged to support, protect, and educate their children.
CHANGES THROUGH TIME
Real change began only in the 19th century when the British Parliament passed the Custody of Infants Act of 1839, which ordered British courts to award custody of children under the age of seven to their mothers. The Custody of Infants Act was the first significant historical legal challenge to the complete authority of fathers. The 1920 ratification of the Nineteenth Amendment in the United States, giving women the right to vote, was another milestone. By the 1930s, the pendulum had swung entirely in the other direction, and U.S. and British courts simply presumed that children should be with their mothers.
In the 21st century, our family law courts are supposed to be gender-neutral, the priority in custody battles is supposed to be the best interests of the child, and judges may consider any number of factors, including a child’s own ideas, feelings, and testimony. Researchers in Canada found that both children and judges benefit from a child’s participation in a custody hearing. Children who are old enough typically want to be involved in the proceedings, and judges have found that a child’s testimony often confirms and complements the evidence and facts in a child custody case. Other studies have indicated that a child’s participation in his or her own custody case adds to the child’s sense that the hearing was conducted fairly and honestly.
WHAT DOES A COURT CONSIDER?
In every state, parents who are divorcing are encouraged to come to an agreement about child custody on their own. Many states provide for private or court-sponsored arbitration and/or mediation proceedings prior to any formal courtroom proceeding regarding child custody. Courts will base child custody decisions on “the best interests” of the child. The term “best interests” can be open to interpretation, and family courts will consider a number of factors to determine what is actually in a child’s best interests. When a child is old enough to articulate his or her feelings, the child’s opinion will almost always be one – among many – factors that a judge will consider.
WHAT AGE IS APPROPRIATE?
Frankly, in Indiana and many other states, a child will rarely testify openly in a child custody hearing. Even if a child is old enough and deemed competent to testify, many parents and attorneys resist allowing a child to testify in open court. Indiana law, however, allows a judge to meet privately with a child during the course of a custody proceeding. Parents typically are not allowed to sit in on these meetings. A judge may also appoint a licensed therapist or social worker to speak with the child and testify on the child’s behalf. While a judge may be intimidating to some children, those children may be much more comfortable speaking with a social worker who is trained to deal with children in sensitive environments. In Indiana and a number of other states, to eliminate any undue influence from a manipulative or controlling parent, a child’s wishes regarding custody are not considered a major factor unless the child is at least 14 years old. In child custody cases, family law judges are vigilant for signs that a child is being improperly influenced by one parent.
Obviously, a 12-year-old’s request to live with one parent or the other will be given more weight than a 3-year-old’s request. It is less likely that the court will try to bring a younger child into the proceedings to learn about his or her wishes. Still, the preference of a younger child will not be dismissed entirely. A great deal will also depend on the maturity and understanding of the individual child, at almost any age. A child who is honest, obedient, and does well in school will have more influence with a judge than a child the same age who is dishonest and routinely in trouble.
UNDUE PARENTAL INFLUENCE
In many child custody cases, a parent will try to influence a child to obtain a favorable custody ruling. A parent may bribe, coax, cajole, make promises, or even bully or intimidate the child. This is one of several important reasons why a child’s testimony cannot be the final determining factor in a court’s child custody decision. Experienced judges look for nuances in a child’s testimony that may point to the suitability or to the unsuitability of one parent or the other. A judge will consider the child’s composure, body language, and tone of voice as well as the child’s words.
If you and your child are involved in a child custody dispute, the judge will certainly be looking for any signs that the child is being unduly influenced. If a child expresses hostility to one parent, the court will not hesitate to delve into the reasons for that hostility. Never try to influence your child against the other parent. If the judge decides that you have negatively influenced your child against the other parent, you could lose your bid for custody of your child. The better strategy is to seek the help and advice of an experienced family law attorney, and then adhere to that attorney’s advice.
OTHER FACTORS TO CONSIDER
Your child’s preference in a child custody dispute may be overruled by the court for a number of reasons. For example, the separation of siblings is rarely seen as being in the best interests of any of the children. A court may also be reticent to upset the status quo if the current living arrangement satisfies the requirement for the court to decide in the child’s best interests. If one parent has a recent criminal conviction – or has a substantial criminal record – that will probably be the determining factor in a child custody case, regardless of a child’s wishes. Where there has been a history of drug or alcohol abuse or domestic violence, that fact will be considered as well.
In many states, a family court judge can bring in a child custody evaluator who will investigate the family and its history, interview family members and acquaintances, and perform psychological tests, observations, and evaluations. A child custody evaluator must remain neutral and disregard any personal prejudice to obtain balanced and accurate information regarding both parents in the child custody dispute, and a custody evaluator must protect the privacy of everyone involved. In some states, judges may base their custody orders directly on the results of a child custody evaluation.
MODIFICATIONS OF CHILD CUSTODY ORDERS
When a custody order is issued, both parents must adhere to it. That does not mean, however, that the particular arrangement is necessarily permanent. Over time, what is best for a child is likely to change. A child custody order may be modified permanently or temporarily by the court whenever there has been a substantial change in either parent’s life circumstances. A disabling injury, unemployment or incarceration, or a new child with another partner are the kinds of circumstances that can lead to the modification of a child custody order. The court may approve a modification in such circumstances, but only if the modification is in the child’s best interests.
When parents can work together and agree on a custody arrangement, and the court signs off on that agreement, it’s best for everyone. Obviously, when parents cannot agree, a divorce or child custody proceeding can become emotionally charged and a drain on everyone involved. If you are involved in a divorce with children or in a post-divorce custody dispute, you need to contact a trustworthy family lawyer who can be understanding and sensitive to your concerns while fighting aggressively on behalf of you and your child. In Indiana, parents who need more information – or legal representation in a divorce or a child custody matter – should speak with an experienced Lake County family law attorney.