Judges meeting with children in the middle of high-conflict divorce and custody cases is not a practice that is encouraged. However, in some circles, some believe that more judicial discussion with or interviewing of children would lead to better decision-making. Further, it may lead to improved outcomes for children and better protection of their rights and best interests.
Judges have always had the discretion to meet with children, usually in chambers. Depending upon a variety of circumstances, a judge will give children an opportunity to voice their beliefs, opinions, and wishes regarding the case. Many states have defined an age at which a child’s wishes “shall be considered” by the court (usually somewhere around age 12), traditionally this practice has been discouraged. The premise has always been that the judge should not have that level of direct involvement in the family matter.
Some concerns regarding judges interviewing children include:
- Out of loyalty to one parent, the other, or both – the children may not be as forthright and honest about what the judge is trying to discern.
- Children speaking with the judge can cause further emotional trauma in a situation where they’ve already seen plenty of it.
- Judges believe that they lack appropriate training in proper interviewing of children under such circumstances.
- A judge is not a mental health expert and cannot be expected to carefully identify signs of abuse, parental alienation, etc.
- Private meetings between the judge and the children, outside of the record, violates due process principles, especially when the discussion could impact judgment.
Judges would much rather see that a mental health expert, with specific expertise in dealing with children, handle interviews of children regarding family court matters and prepare a report on their findings for them. (Usually, these are done via broader custody evaluations.) While a guardian ad-litem may be assigned to a child, there are limits to how much may be shared regarding a child’s express wishes regarding child custody matters. Sometimes parents or others may be granted permission to testify regarding a child’s “state of mind.”
Do children have the right to meet with the judge, a person who will make a life-affecting decision? Some believe they do and they also believe that children will benefit from being able have a dialogue with the the judge, ask questions, and gain information about the court process. Age appropriateness, of course, is an issue that must be considered.
Many judges have found the practice useful and often reports putting children at greater ease. After all, it often seems to the kids that everyone has the interests of everyone and everything else in mind and the last person considered is the child. This, despite everyone using the term “best interests of the children” as a rallying point.
As it stands, there are lots of people who have the ability to speak with the child on matters relevant to the family court process. There are parental coordinators, guardians ad-litem, therapists, mediators, custody evaluators, and more. Some say that adding another person to this mix stands to further complicate matters. Some say that a properly trained judge can learn a lot, even from a short interview directly with children that is unfiltered by other experts.
Absent an abusive situation, children generally don’t want to choose one parent over another. They love both parents and they have an inherent expectation of love from both parents. That said, they may have an intelligent view of the situation that would influence a pending parenting agreement or child custody order. In a one-on-one scenario, it wouldn’t be that hard to find out if a child is voicing a particular preference do to favors or an expectation of a “funner” lifestyle with one parent or if they have some pertinent information that warrants consideration before a ruling is made. Assuming there is a shift towards more judge-child discussion, it is critical that children be made abundantly clear that their opinions and thoughts are worthy of consideration and that they are not being granted the power to choose their living arrangements.
High-conflict divorce and custody situations are always emotionally traumatic for children stuck in the middle. We wonder if properly trained judges charged with conducting an age-appropriate interview with a child who expresses a desire to meet the judge will provide for a better outcome. Given everything the children have to go through normally, it’s not unreasonable to expect that it will cause more trauma if both the child and the judge are adequately prepared. Perhaps children who feel that they have been heard in the course of such tumultuous times may actually have better outcomes.
We’ll simply add this to the long, long list of issues to debate and discuss about the family court process.