In September 2017, I attended a conference at which one of the speakers said that a child who has had an opportunity to have a voice and be heard in the custody process is more likely to follow the custody order even if not the child’s desired outcome. This resonated with me because I represent children in contested custody cases and because it made me think about the various ways the child’s voice is heard.
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
The United States has not ratified the Convention, so is not bound by Article 12. As of the writing of this article, 196 other countries have.
So, how is the child’s voice heard?
In several, sometimes overlapping ways.
Best Interest and Child Advocate Attorneys:
In contested custody litigation, the court may appoint the child a Best Interest Attorney or Child Advocate Attorney. For more information about these roles, please read my post about Attorney Representation of Children. In both cases, the attorney is appointed to represent the child and child’s interests.
A Best Interest Attorney (BIA) is required to make the child’s position part of the record, even if different from the position the BIA advocates regarding the child’s best interests. A BIA may meet with and interview the child client and will prepare the child to meet with the judge or testify, if the child is to do so. In short, the BIA advocates the child’s best interests, separate from the child’s preference (if any), but is required to make the child’s preference part of the record.
A Child Advocate Attorney (CAA) acts as an independent attorney for the child client, owing the same duties of undivided loyalty, confidentiality, and competent representation as are due an adult client. A CAA is appointed when the child is in need of a voice in court and the child demonstrates “considered judgment”. In short, a CAA advocates for the child’s preference.
A custody evaluation is conducted by a mental health professional who performs an investigation about the family, assesses the fitness of the parents, and makes recommendations about the living and decision-making arrangements that suit the best interests of the child. This includes observing and interviewing the child, as well as reporting on and testifying about the child’s statements and preferences. For more information about custody evaluations, please see my posts:
- Types of Evaluations in Custody Cases: Volume 1 – Court Evaluations
- Types of Evaluations in Custody Cases: Volume 2 – Private Custody Evaluations
A child’s therapist may be allowed to disclose the child’s statements in therapy, if the child’s privilege/confidentiality with the therapist has been waived by a Child Privilege Attorney. In contested custody litigation, parents lose the right to decide whether or not their child(ren)’s privilege should remain intact or be waived, and so an attorney is appointed to make that decision. If a Child Privilege Attorney does not waive privilege/confidentiality, then the therapist will not be allowed to disclose the child’s statements.
Talking With the Judge or Magistrate:
Sometimes a Judge or Magistrate will speak with the child. It may be at the request of the child or a parent. It is up to the Judge or Magistrate to decide whether he or she will speak with the child, and if so, whether whether the interview will be with or without counsel present. Unless waived by the parties, the interview shall be recorded and its contents immediately made known to the parties and their counsel. The interview usually occurs in the Judge’s or Magistrate’s chambers/offices, not in the courtroom and not with the child on the witness stand, testifying before parents and attorneys.
If a Judge or Magistrate decides not to speak with the child, a parent may insist on the child taking the stand and testifying. In that situation, the Judge or Magistrate will need to decide if the child has capacity to testify. Whether a child has capacity is within the Judge’s or Magistrate’s discretion and traditionally depends upon whether the child witness has sufficient intelligence to make it worthwhile to hear from the child and whether the child feels a duty to tell the truth.
This role from the Collaborative Process may be chosen by parents in Collaborative and other settlement processes to gain insight into the child’s point of view. Specifically, a Child Specialist is usually a mental health professional whose role is to gather information about the child’s emotional state and experience, by meeting with the parents and separately with the child, to provide observations about the child to guide parents in developing a parenting plan.
Mediation and Parent Coordination:
These are dispute resolution processes to help parents reach agreement. Sometimes a Mediator or Parent Coordinator, if a mental health professional, will meet with the child with the parents’ consent. This is to gather information from and about the child, to assist the parents and Mediator or Parent Coordinator to reach agreement.
There is no one way to give a child the opportunity to be heard in a custody case. And, sometimes a child does not want to be involved at all. Careful consideration should be given to the advantages and disadvantages of each of the options above.
Time will tell how the international focus on incorporating the child’s voice will affect custody cases in Maryland.
Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law. You can follow her on Linked In, Facebook, LindsayParvis.com, and subscribe to her Newsletter for discussion, news, and developments in Maryland family law.