What argument supports taking the views of a child into account when making custody determination?
The argument is this: the judge cannot determine if such evidence is relevant if the judge never actually has such evidence to consider.
In Utah (where I practice divorce and family law), this was the law as late as 1967 in this part of Utah Code Section 30-3-5:
When a decree of divorce is made the court may make such orders in relation to the children, property and parties, and the maintenance of the parties and children as may be equitable; provided, that if any of the children have attained the age of ten years and are of sound mind, such children shall have the privilege of selecting the parent to which they will attach themselves. Such subsequent changes or new orders may be made by the court with respect to the disposal of the children or the distribution of property as shall be reasonable and proper.
You read that correctly. Time was in Utah (and I’m sure in many other states) that children 10 years of age or older got to choose which parent they lived with after divorce (back in a time when it was unthinkable to award joint custody of children to parents). Utah (and I’m sure most other states) no longer give the child the choice regarding the child custody award. That’s a good development, but Utah went too far and now rarely (so rarely it might as well be never) hear their experiences, observations, opinions, and desires regarding custody.
In Utah, those who have the greatest stake in the child custody award (i.e., the children themselves) have no right to express themselves and be heard on the record on the subject. At best, the court has the option of inquiring with the children, and so if the court does not want to hear from the children, it won’t hear from them.
[Utah also has provisions for appointing spokespeople for children in the form of guardians ad litem and custody evaluators, but the problem with them is that they are sources of nothing more than court sponsored hearsay, providing accounts allegedly coming from the children, but secondhand, filtered through the biases, agendas, and inattention inherent in every secondhand account. The so-called reasoning of judges who refuse to permit testimony directly from the child’s mouth to the judge’s ear is patently lame. One of the most common and most lame excuses goes something like this: “Allowing the children to testify places them in the middle of their parents’ child custody fight, so for the sake of sparing the children this trauma, I will not hear from the children.” You may have even heard this argument yourself from judges or even from attorneys. The flaw in such an argument arises when it is asserted to justify “hearing” from the children in the form of guardians ad litem and/or custody evaluators. Whenever I point out that questions to children are still going to be the same kinds of questions, regardless of whether they come from a guardian ad litem (who is a lawyer) or from a custody evaluator. It’s not as though the children somehow magically and cheerfully forget the purpose and import of such questions as long as a judge does not pose them.]
Some judges may worry that children are too young or too manipulable to be trusted to express their experiences and preferences in a way that is probative, in credible a way that will help the court make a sound, informed decision. But such judges can’t know one way or the other if the children are not questioned on the record at all. To assume that all children are inherently bad witnesses is unfair to everyone, but especially to the child.
Utah Family Law, LC | divorceutah.com | 801-466-9277