Why is it OK for a parent to be given custody without their kids’ consent?

Why is it okay for a parent to be given custody without their kids consent or at least their input? This is a great question. I can’t speak for all lawyers, and the laws and rules governing what the courts must and can consider when making child custody awards differs slightly from jurisdiction to jurisdiction, but in the jurisdiction where I practice divorce and child custody law (Utah), there is a general policy that you can’t find written down anywhere but is nevertheless pervasive, and that is: courts will not talk to children in child custody cases if there is any way they can come up with a plausible excuse.

Do not misunderstand me. Courts can interview children on the subject of child custody and solicit the children’s experiences, observations, opinions, and preferences regarding the child custody award, although a child’s desires are “not the single controlling factor” governing the eventual child custody award (See Utah Code Section 30–3–10(5)(ii)). It’s just that most Utah courts, for reasons they’ve never credibly or logically explained to me, just don’t want to do it. Instead, they contract out the interviewing process to what are known as “custody evaluators” and/or “guardians ad litem”. You may ask, “So what’s the harm in that?”

In Utah, interviews between the children and custody evaluators and/or guardians ad litem are not on the record. Thus, we will never know what the children on what subjects the children were interviewed over or even if the children were interviewed at all. neither will we know what questions were asked, the manner in which they were asked, and the content and tone of the children’s responses, if any. Curiously, we don’t treat any other witness this way, but for some reason courts are more than happy to believe or say they believe that a custody evaluator and/or guardian ad litem would lie about a child interview or bungle a child interview.

when a judge interviews the child, not only do you have direct, unfiltered testimony in response to questions that the judge himself or herself deems most important to the child custody and parent time award analysis, that it takes less time, far less time than having a custody evaluator and/or guardian ad litem appointed to do the job. And it’s free of charge to have the judge interview the children, as opposed to costing thousands of dollars to pay for the services of a guardian ad litem, and even costing in excess of $10,000 to pay for the services of a custody evaluator. the value of what guardians ad litem and custody evaluators provide for the money just isn’t there when compared to no cost for a judge to interview the children directly and on the record. For some reason courts are more than happy to believe or say that they believe that it is just as good or better to have a child interview summarize and filtered through a custody evaluator or guardian ad litem then it would be to have the child speak directly to the judge, answering questions most pertinent and relevant in the judge’s opinion, and on the record. If you can explain how that makes any sense, please drop me a line.

Now clearly, some children would be too young to express a credible opinion or desire regarding child custody, are too young to know what they want, so young that they are easily manipulated, coachable, intimidated, or coerced. in those situations, it may make all the sense in the world to have a mental health professional observe the child to provide the court with some guidance as to

what custody and parent time arrangement serve the best interest of the child. but if a child is older than 10 years of age, there’s no harm in having the judge speak to that child to take the measure of the child, the child’s level of maturity and intelligence, and solicit information from that child’s experience to help guide the court in making the child custody and parent time awards. This is simply inarguable. And yet it remains virtually impossible to get a court to interview children directly and on the record. That doesn’t mean you shouldn’t try. That doesn’t mean you shouldn’t ask the court to interview the children on the record, just don’t be surprised if you get inexplicable resistance to such a sensible idea, both from the court and from opposing counsel.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/Why-is-it-okay-for-a-parent-to-be-given-custody-without-their-kids-consent/answer/Eric-Johnson-311?prompt_topic_bio=1