I’m 14 and My Parents Are Separated and Are Getting a Divorce Soon, but Why Does the Court Decide How Many Times I See My Father and Not Me?
Allow me to start my answer to your question by acknowledging how unfair it is to children of divorce when courts refuse to hear from the children and refuse to allow them to weigh in on the child custody and parent time decisions.
Generally speaking, courts go out of their way to ensure that children are never heard from directly or on the record in a divorce case on the subjects of the child custody awards and the awards of parent time (also known as visitation).
The reasons why courts refuse to hear from children are many. They assert that questioning children about their experiences, observations, feelings, opinions, and desires pertaining to the child custody and parent time awards:
- “puts them in the middle of their parents’ divorce,” but that is silly. The children are already aware that their parents are divorcing and if there is a fight over the child custody and parent time awards. They have the greatest stake in the outcome of the child custody and parent time decisions. Rather than “sheltering” children from harm by refusing to hear from them, courts end up failing the children far more and doing the children far more damage by refusing to consider children’s perspective to inform the court’s decisions better.
- “puts them in a position of having to choose one parent over the other”. Nonsense. While it is true that a court could ask children, “Which parent do you want to live with?,” A court is clearly not required to ask such a question of the children. Sometimes a child’s preference may be important to know before a court makes the child custody and parent time awards, but even then, there are ways of discerning and learning a child’s preference without asking the child about it directly. Far more useful to the court will be eliciting information from the children regarding 1) the parents’ respective desires to be actively involved in their children’s lives postdivorce and 2) the parents’ respective levels of parental fitness. Rather than asking Johnny which parent he prefers, the court should find out from Johnny whether one parent clearly provides more care and attention to him than the other, whether one or both of his parents is abusive, neglectful, and absentee parent, impaired by substance abuse, etc.
- doesn’t result in reliable evidence because children are easily manipulated, coached, or coerced. But that’s painting all children with an unfairly broad brush. While it is true that some children might be unreliable witnesses because they were manipulated, coached, and/or coerced, it would be unfair and foolish to presume that all children are that way. Rather than presuming a child will be an unreliable witness, the court needs to hear from the child first to gauge that child’s level of competency as a witness and the child’s level of credibility. That can’t happen if the child is never allowed to testify.
- is a bad idea because kids shouldn’t get the idea that they call the shots. This is a silly argument too because asking a child what he wants doesn’t mean that the child controls the outcome, and it’s very easy to make that clear to a child by plainly stating, “while I am interested in knowing what your preferences are, it is not the single factor controlling my decisions.”
You are the one who will be most affected by the child custody and parent time awards. It will not only affect the rest of your life as a minor child, it can have a profound effect on the rest of your entire life. You deserve to be heard from, if you want to be heard. You are morally entitled to be heard from, if you want to be heard. The court and your parents need to respect your opinions. If you want your voice heard on the subject of the child custody and parent time awards, then unless you are in an extremely liberal and progressive jurisdiction, you are going to have to work extremely hard to ensure that happens. Frankly, the odds are against the court ever hearing from you directly as to your experiences, observations, feelings, opinions, and desires pertaining to the child custody and parent time awards. But there is too much riding on the outcome of the child custody and parent time awards for you to give up and stay silent.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Tags: children's best interest, children’s desires, Utah divorce, voice of the children