I’m 15, about to be 16, and my parents are getting a divorce. My father has full custody, but he doesn’t want to take me to court to present my case that I want to see my mother. What can I do?
“What can I do?”
This is the perfect question in your situation, or more accurately, the perfect question to start the conversation. And before I give you the lengthier explanation, the short answer is: not much, unless you’re willing to take a lot of heat in your effort to have an influence over your own custody and parent time award (and even then, you may find your efforts utterly thwarted).
I cannot speak for all jurisdictions, but I can talk about my experience in the jurisdiction of Utah, where I have some experience with the question of children having their experiences, observations, opinions, and desires both made known to the court and duly considered by the court before the court makes its child custody and parent time rulings.
If you fear that the court may make a child custody and/or parent time award that is contrary to, if not diametrically opposed to, what is best for you individually and even best for the family collectively (the best interest of the whole family is a consideration courts too often overlook), you have good reason for such fear.
Generally speaking, Utah courts hate involving children directly in child custody litigation and will go to extraordinary lengths to prevent it.*
It wasn’t always this way.
As late as the mid-1960s, the law in Utah was that if a child were over the age of 10 years and found to be of sound mind, the child had not just the right to express the child’s opinion as to the custody award, the child had an absolute right to choose.
Just slightly less than 60 years later, just the opposite is now the case. Children are not allowed to choose the custody and parent time award, they’re not even allowed to weigh in on the subject on the record, unless the court permits them to do so. And courts rarely, if ever, allow children to testify on the subject of their desires regarding the child custody and parent time awards. How rarely? In 25 years of practice, I’ve been permitted to allow one child to testify on the subject.
Oftentimes the court may order a “custody evaluator” appointed to speak to the child and then make recommendations to the court as to what the evaluator believes is the best custody award for the child. The court can also appoint, either separately from a custody evaluator or along with the appointment of a custody evaluator, a guardian ad litem ostensibly “for” the child.
Custody evaluators and/or guardians ad litem are intended to speak with child, learn of the child’s current circumstances and determine what the child needs by way of the custody and parent time awards, and then make recommendations to the court regarding the custody and parent time awards that best serve the “best interest of the child” (whatever that means).
Child custody evaluators and guardians ad litem are hardly infallible. I find most (not all) to be narrowminded and lax in their professional discipline and competence. Many of them have their own biases and agendas that lead to recommendations being in some cases diametrically opposed to a fair and reasonable custody and parent time award that the child wants or even needs. Many lack the courage to recommend what they honestly believe is best for the child, and instead make recommendations that don’t buck the legal culture’s conventional wisdom.
I’m not telling you that this is what you should do, but I’ll tell you what I would do if I were a 16-year-old child whose parents were involved in a divorce action and the fight over the child custody award, and I wasn’t afraid to speak up for myself, even if my parent(s) and/or the court was upset about me speaking up for myself and expressing my own experiences, opinions, and desires:
I would insist, if a guardian ad litem and/or custody evaluator were appointed ostensibly “for” me, that all interviews with me be recorded by sound and visual means (in other words, both audio and video recorded), so that if the evaluator and/or guardian ad litem tried to misrepresent what I was asked and or what I stated in response, there would be an objectively verifiable, indisputable record.
I would make sure, in the course of the interviews with the guardian ad litem, that I make it clear that I wish to have my testimony heard by the court, from my mouth to the judge’s ear, with nothing interfering. No summary prepared by a third party in lieu of my direct testimony, no “proffer” of what I “would say” if called to testify.
If I were not absolutely certain that the judge reviewed my own words, whether that be in the form of the recorded interviews, a deposition, in-court testimony on the record, or my own sworn affidavits or verified declarations (and by the way, I would try not to rely on affidavits or declarations because a court could easily claim that I didn’t write the words on the pages and thus dismiss the averments in the affidavits and/or declarations as not credible), I would hire my own attorney to take matters into my own hands and to help me to protect in advance my own interests in the child custody and parent time dispute.
If my guardian ad litem did not do exactly as I directed my guardian ad litem to do, I would retain my own lawyer of my own choosing (it may be hard to find one who is willing to represent you, but if you are persistent, you will find one—I am such an attorney, and I’ve caught plenty of flak/flack for being such an attorney, but that hasn’t changed my willingness to represent a child in this kind of situation). Then I would have my lawyer notify the court that my guardian ad litem was not acting in my best interest and misrepresenting my interests and my positions and my desires to the court, which is why I have had to resort to retaining my own choice of counsel to do the job that my guardian ad litem has failed and/or refused to do.
I would then have my attorney file motions and my affidavits (both from me and others who know me well) with the court explaining that because I am the very subject of the child custody and parent time disputes and the eventual child custody and parent time awards, because I am the one who will be most and most seriously affected by the child custody and parent time awards, my opinions and desires on the subject of child custody and parent time, my testimony (more accurately, my direct testimony itself, not adulterated or filtered through intermediaries like guardians ad litem and/or child custody evaluators). I would need to be prepared to have my intellect, lucidity, maturity, and the purity of my motives questioned because of my “audacity” shown by wanting to weigh in on my own child custody and parent time fate.
*In fairness, there is at least one legitimate basis for this, and that is a concern that having children discuss matters of child custody and parent time and testify on the subject might make the children feel as though they are having to “choose sides” in the child custody and parent time dispute, and that this could emotionally and/or psychologically cause the child serious, if not irreparable, emotional and psychological harm. The problems with this line of thinking ruling the day include:
- while it is laudable to desire that a child be protected from harm, it does no good to expose a child to one kind of harm in an effort to protect the child from a different kind of harm. Look at it this way: Which is better? Remaining willfully ignorant of the evidence the child might provide (for fear that inquiring with the child might— might—harm the child), or inquiring with the child to see what useful evidence, if any, that child has to offer? Clearly, if there is sufficient evidence to conclude that of parent or parents will punish or retaliate against the child (and do so in a manner against which the court cannot protect the child) if that child provides his/her honest and complete observations, experiences, and preferences, it may be best for the sake of the child and for the sake of the evidence not to inquire of the child. Otherwise, it strikes me as malfeasance not to inquire directly with the child to gain what could be (and almost surely will be) some of the most material, relevant, compelling evidence on the subject of the child custody and parent time awards. a blanket ban on inquiring with the child, implemented ostensibly for the purpose of “helping” or “protecting” children is a wolf of a copout in sheep’s clothing.
- too often court’s give children too little credit for their abilities to express their experiences, observations, desires and preferences without those preferences being based in pure “loyalty” to one parent and pure “rejection” of another parent. Clearly, if the evidence honestly preponderates toward finding that a child has been unduly influenced (through coercion or enticement or both), the child’s opinions have been tainted to the point of being worthless from an evidential standpoint, but not everything a child says is inherently worthless simply because a child said it, yet that is exactly how many courts view and treat a child’s testimony, any child testimony, every child’s testimony, regardless of how honest, old, intelligent, mature, and rational that child may be.
Utah Family Law, LC | divorceutah.com | 801-466-9277