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Involving Children in Custody Decisions and Information Gathering

by | May 17, 2024 | Child Custody

When I first started practicing Family Law another attorney shared with me about a contentious custody case that he had been involved in where the Court wanted to receive input from the teenage child to help with resolving the pending custody trial.  To elicit the child’s input, the child was scheduled to meet with a Family Court Services counselor at the courthouse who would interview the child to receive their input and preference.  On the morning of the interview the child took their life.  In this week’s blog we take a bit of time to explore this issue of involving our children in the decision making surrounding custody and visitation.  On the one hand we want to be thoughtful about the needs and wishes of our children, but on the other hand we want to avoid making them feel like they are caught in the middle or that they have to choose between possibly the two most important people in their lives.


Being Placed in the MiddleThe case shared by my old colleague is an extreme one.  I have not heard of something similar happening since but I have seen many examples of children having emotional challenges related to the conflict between their parents, being asked to choose sides, or being enlisted as a witness against the other parent.  This involvement of the children can be blatant or subtle.  When I was handling litigated divorce cases I would often hear allegations of the other parent interrogating the children on their return from a custodial visit.  It can also be as subtle as the child knowing that the parent is resentful of the other parent so when the child returns from a visit they don’t dare share about anything fun they did because they know it will upset or disappoint their other parent.


It is a standard provision in custody orders that “Neither parent shall make negative statements about the other parent in the presence or hearing of the children, question the children about the other parent, or use the children for communication about adult business.  The children shall not be exposed to court papers or disputes between the parents, and each parent shall make every possible effort to ensure that other people comply with this order.”


The Best Interests of Children.  I think it is safe to say that if at all possible it is in the best interest of our children to be left in a position after their parent’s divorce to be able to carry on a strong relationship with both of their parents, freely love both of their parents, and not be left in a position where they need to choose between one or the other.  In my mediations this is largely accomplished by the parents sitting down and exploring child sharing arrangements that are practical given work commitments and availability, which allow both parents to continue their relationships with the children and allow each of them the opportunity to be involved in meeting their day to day needs.  Part of this discussion includes speaking about how the children’s needs will be best met and whether the children might have any preferences, but the children are not drawn into the decision making process and it is the parents deciding on what is best for the children.  


When Litigating part of the challenge in custody fights is establishing what the facts are.  The children may be complaining to one parent about what is happening in the other parent’s home.  The only witness to it all is the child.  If those complaints impact the safety or well being of the child it stands to reason that the parent would want the child to report it to the Court so custody orders could be made accordingly.  Herein lies the challenge.  We want our children to be able to just be in both homes, but we also want to make sure they are comfortable in both homes, so we want to invite them to share if there are any difficulties occurring in the other home.  How can we support our children’s relationship with the other parent when we are also wishing to gather intelligence about the parenting that is happening in the other home?  Our children should be left to enjoy and just be with the other parent without feeling like they are expected to report about every new development in the other home.


The standard custody provision mentioned above requires parents to refrain from questioning the children about the other parent or involving the children in communication about adult issues.  When parents are fighting about the custody of their children and their only witness in the other home is the child, it naturally follows that those parents are going to seek what information they can from their children.  If you are in such a situation, understand the damage that you can cause your child.  I mentioned that it is typically in the best interest of our children  to be left in a position after their parent’s divorce to be able to carry on a strong relationship with both of their parents, freely love both of their parents, and not be left in a position where they need to choose between one or the other.  When we use our children for information gathering or enlist them in choosing sides, we are not allowing our children to freely love both of their parents.


Harm and Safety.  So, let’s not put our kids in the middle of our divorce.  In a perfect world we would all just get along and there would be no fights over our children when we divorce.  That is obviously not the state of things.  Sometimes the custody battles that take place involve allegations of abuse, addiction, and lack of due care.  If harmful things are taking place it is clearly not in the best interest  of our children to continue in such an environment.  If the only way these issues can be identified is through the reporting of the children, it is not necessarily in the best interest of our children to be kept out of the middle.  Establishing that the problem exists so that it can be remedied outweighs the importance of not gathering the information from our children about what is going on in the other home.


Finding the Right BalanceIt is too bad that we even need to discuss using the children for information gathering.  In the end parents need to recognize that each parent should be left to parent as they deem fit and that the children should be left to experience each parent’s home without being asked to report on what is taking place.  Interrogating or fact gathering is damaging so avoid the temptation to do so absent good cause.  It is certainly okay to show interest in hearing about what they were up to, but only do so if it comes from a genuine interest in catching up and not as a tool to monitor the other parent.  


Child Involvement through Stating Preference  I have previously written about Family Code 3042 which establishes some parameters providing for children to be able to report their custodial preferences to the Court.  Family Code 3042 provides “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.”  The Court sets the age where the child is to be given the option to state preference as at age 14, but the Court can allow younger children to provide information on preference.  Just because a child has a preference, it does not mean the Court will make orders consistent with it.  The notion of “intelligent preference” means that the child’s preference to live with one parent over the other should be for reasons that are healthy for the child.  Lack of discipline and/or supervision are actually possible reasons where the Court would find the best interests of the child are inconsistent with their wishes.  Greater comfort in the home, more engagement from the parent, having their needs met, proximity to friends, etc. are all examples of intelligent considerations impacting preference that might result in the Court making orders consistent with the child’s stated preference.


The Good and the BadThe good that comes from allowing a child to voice preference is that it helps them feel heard and can result in setting up a sharing schedule that the child is comfortable with.  It gives the child an opportunity to weigh in on things and there may be very good reasons for the developed preference.


On the other hand, soliciting a preference from a child can place them in that uncomfortable position of having to choose between parents.  This can make a child feel guilty, stuck in the middle, or worse.  As parents we can recognize the importance of our children, even as they become teenagers and develop stronger opinions, of maintaining a relationship with both parents, as each parent has different gifts they bestow on the children.  The parents making the decisions avoid forcing the child’s hand in having to select a preferred parent.  


Subtly GaugingThere are ways to ascertain what a child wants and needs without coming right out and asking them to choose between their parents.  As you approach working with the other parent to fashion a child sharing schedule, be cognizant of gaining an understanding about what is important to the children in fashioning the schedule without making them feel like they need to choose.  You can determine if your child is having difficulties in the other parent’s home without subjecting them to an interrogation.  Having the parents take responsibility for the child sharing arrangement while being thoughtful about the children’s needs and wishes, can accomplish reaching a well informed custodial arrangement that allows our children to carry on a strong relationship with both of their parents, freely love both of their parents, and not be left in a position where they need to choose between them.  The last thing we want is to stress out our children by forcing them to choose sides in the divorce.