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Tag: preferences

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

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What does a judge ask a child in a custody case?

In Utah (where I practice divorce and child custody law) the answer is: it’s almost impossible to say. Why?

  1. For reasons that I assert I can demonstrate are not highly rational*, the majority of judges are extremely reluctant to question children on the subject of the child custody award.
  2. Case files for child custody cases are classified as private and not accessible to the public, so unless the child is questioned in a public court proceeding (which happens so rarely one could honestly state that, statistically speaking, it never happens), we will never know (we can never know) what the child was asked or what the child said in response. Those judges who are willing to question children—as they are authorized by the Utah Code to do—almost never question children in public court proceedings but instead question them in chambers, although the questioning is conducted on the record and not covertly.
  3. The law gives judges the opportunity to avoid hearing directly from a child by instead appointing an attorney for the children known as a “guardian ad litem” and thus avoid ever actually hearing any testimony from the child’s own mouth by having the GAL claim to have spoken to the child, albeit not on the record (and thus there is no objectively verifiable way to confirm this), to have elicited from the child his/her experiences, observations, feelings, opinions, and desires (again, without there being any objectively verifiable way to confirm this) and then, based upon literally nothing that is objectively verifiable, make recommendations to the judge as to how the judge should rule on the issue of the child custody award.

*The ostensible reasons that most judges give for refusing to question children or allow children to be questioned by an attorney or attorneys are that they:

  1. A) fear that if parents find out what the child says, then the child may feel guilty for expressing a preference or preferences for one parent over another on particular subjects of parental abilities and fitness;
  2. B) fear that once parents discover what the child had to say the child may be punished or retaliated against if what the child said upsets or offends one or both parents; and/or
  3. C) conclude, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions.

Here is why I assert that such reasons are not rational:

1) First, parents are going to find out what a child thinks, feels, and wants with regard to child custody irrespective of whether the judge questions the child in court proceedings. Parents are going to learn of this (whether directly from the child or from his/her siblings, extended family members, friends, neighbors, teachers, counselors, coaches, ministers, etc.) before the child custody case is filed, during the pendency of the child custody case in court, at trial, and after the trial. It’s unavoidable. It’s inevitable. I submit that i) the belief that not questioning a child about his/her opinions and preferences regarding child custody will prevent the child’s parents from discovering those opinions and preferences, and ii) the believe that the only time and place in which the child will express such things is when questioned by the judge, is rather naive; it’s impossible to prevent parents from learning this information from and about the children.

Second, the value that many judges place on preventing children from feeling guilty or uncomfortable is misplaced. For two reasons. One, children who are going to feel guilty and uncomfortable about their child custody preferences, who are going to feel as though they are betraying a parent by expressing a preference for one over the other. are going to feel that way regardless of whether they express those preferences to the judge or a custody evaluator or a guardian ad litem (GAL). Two, getting to the truth about how children feel and why—when it comes to their child custody preferences—is far more important than sparing them from feeling guilty (especially when we already know they’re going to feel guilty regardless of whether they testify). Otherwise stated, preventing child testimony does no good: it protects the children from nothing, while denying the judge the clearest, purest sources of information about the children’s experiences, observations, feelings, opinions, and preferences as they relate to the child custody award.

2) If the judge believes that children will not be punished for expressing a preference for one parent over another, so long as those preferences are not expressed to the judge, again, that’s not rational either. It is impossible for a judge to prevent parents from learning a child’s feelings, opinions, and preferences regarding child custody. Thus it is impossible for a judge to prevent a parent who gets upset by those feelings, opinions and preferences from learning about them and from punishing and retaliating against his/her child once he/she learns of them. A judge can’t even mitigate the amount and severity of the retaliation and punishment because the judge is powerless to prevent the child’s feelings, opinions, and preferences from being discovered. And so once again, we find the court depriving itself of one of the clearest and purest sources of information and guidance on the subject of thee child custody award based upon a fear and a belief that has no rational basis. Closing one’s ears and eyes to what a child can say on the subject displays, frankly, a shocking disregard for the best interest of the child.

3) Concluding, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions. See self-fulfilling prophecy. While it is certainly true that some children may be, for various reasons (such as being too young to talk, too young to have a consistent and reliable understanding of right and wrong and truth and falsity, placed in circumstances that call the veracity or credibility of the child’s testimony into question from the outset, etc.), one sure way to guarantee that we never determine how informative, probative, and reliable a child’s testimony may be and what weight to give such testimony is to dispense with allowing the child to testify in the first place.

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

https://www.quora.com/What-does-a-judge-ask-a-child-in-a-custody-case/answer/Eric-Johnson-311

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Do underage children have any say in custody in the U.S.?

Do underage children have any say in custody in the U.S.?

In my jurisdiction where I practice family law (Utah), the answer may be hard to discern by reading the Utah Code, but here it is (I’ll explain it after you read it):

Utah Code § 30-3-10. Custody of children in case of separation or divorce — Custody consideration.

(1)(d) A child may not be required by either party to testify unless the trier of fact determines that extenuating circumstances exist that would necessitate the testimony of the child be heard and there is no other reasonable method to present the child’s testimony.

(1)(e) The court may inquire of a child and take into consideration the child’s desires regarding future custody or parent-time schedules, but the expressed desires are not controlling and the court may determine the child’s custody or parent-time otherwise. The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor.

(1)(f) If an interview with a child is conducted by the court pursuant to Subsection (1)(e), the interview shall be conducted by the judge in camera. The prior consent of the parties may be obtained but is not necessary if the court finds that an interview with a child is the only method to ascertain the child’s desires regarding custody.

So what does this mean? Does it mean that children get to choose with which parent they will reside after divorce? Does it mean that children get to tell the judge what their preferences are and why?

No and no.

When the Utah Code states that “[a] child may not be required by either party to testify unless [the court] determines that extenuating circumstances exist that would necessitate the testimony of the child be heard and there is no other reasonable method to present the child’s testimony,” translated that means “a child will almost never ever testify because court will never determine that sufficient extenuating circumstances exist to necessitate the testimony of the child being heard; instead, the court will determine there are other ‘reasonable’ methods to present the child’s testimony, like a custody evaluator or guardian ad litem, both of which are prohibitively expensive, second-hand sources, and not terribly reliable.”

When the Utah Code states that “[t]he court may inquire of a child and take into consideration the child’s desires regarding future custody or parent-time schedules,” “may inquire” means “never inquire.”

“The desires of a child 14 years of age or older shall be given added weight, but is not the single controlling factor” means “the court can, and almost always will, do whatever it wants, irrespective of what a child may desire.”

Don’t believe me? Ask around. See if you can find a lawyer who was able to persuade a court to allow children to express their desires regarding custody and visitation directly to the judge.

So why are judges so reluctant to listen to children?

They’ll tell you that they don’t consider children terribly credible witnesses on the subject of custody because a) they are believed to be too easily manipulated and coached by one or both parents; and b) they are not “qualified” to conduct a valid interview of a young child. It’s all nonsense, but the excuses don’t have to be good, they just need to exist to provide the court with an out.

How will a judge know a child is too easily manipulated or coached unless the judge interviews the child? You can’t disqualify a witness on mere beliefs and stereotypes. And if a judge begs off of interview a child by claiming he/she is not “qualified” to conduct the interview, then the judge isn’t qualified to be a judge. And if lack of qualifications is the excuse, the solution isn’t refusing to interview the child, it’s getting qualified.

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

https://www.quora.com/Do-underage-children-have-any-say-in-custody-in-the-US/answer/Eric-Johnson-311

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