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Who Has the Ultimate Decision Making Authority in a Child Custody Case, the Parents, the Lawyers, the Judges, or the Child of a Certain Age?

If the case goes to trial: the judge. However, in Utah, the jurisdiction where I practice (which is the case in most other jurisdictions too), the parents, children, and lawyers all have the opportunity to provide their input in an effort to influence, though not control, the judge’s decision.

If the parents settle the case out of court: the parents. However, the parents’ settlement agreement is subject to the judge’s approval, but judges approve settlement agreements almost all the time, as long as the settlement complies with the laws, isn’t inequitable, and can reasonably be said to subserve the best interest of the children (if the divorcing couple has children).

The lawyers have no control and only as much influence as their clients will permit them to exert and as much as the judge finds persuasive.

The children, like the parents and the lawyers too, have no control over the child custody award and generally have the least amount of influence over the decision. One of the shameful reasons for this is that most courts don’t want to hear from the children. They’ll tell you one reason is to “spare the children being put in the middle of a dispute between their parents,” but that’s not the real (or perhaps it would be more accurate to state it’s not the ‘main”) reason; kids already know they’re in the middle, so the courts can’t spare them. The real reasons are that many courts think kids are often bad witnesses because they are too young and inarticulate to testify intelligently and coherently on the subject of the custody award. And often courts won’t let children testify, which results in courts having as much discretion as possible to make the custody award they desire to make, free of having to take into consideration any pesky testimony of a child.

Some will argue that children “need someone to stand in their shoes and give them a voice” in the child custody dispute. Perhaps, if the child’s an infant who doesn’t yet wear his/her own shoes and can’t talk; otherwise, kids can stand on their own and don’t need someone to speak for them when they have their own voice and are willing to talk. But courts inexplicably (I mean it—inexplicably—believe it’s better to appoint a middleman to provide second-hand, hearsay, summary “recommendations” to the court regarding the child custody award. This middleman is an attorney known as a guardian ad litem or GAL. I really would like to say that GALs add real evidentiary value to a case. They don’t. Milton Friedman said, “One of the great mistakes is to judge policies and programs by their intentions rather than their results” Just as many people believe that seat belt laws save lives (when it’s actually the use of seat belts, not the seat belt law itself, that saves lives), those who believe that a GAL will act in the best interest of a child believe—mistakenly—that a GAL will in fact act in the best interest of a child merely by virtue of that being the intention of appointing a GAL. GALs generally do not fulfill their intended mission. In some cases, they do a child more harm than good. This is why my experience with GALs has generally been a negative one (even when the GAL sides with my client).

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

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