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But My Kid Says…

By Jamie Leaver Sawyer, Esq.

It is not uncommon for children whose parents are in the middle of a custody dispute to make comments about their fears or wishes. It is also not uncommon for parents of those children to ask that we relay those comments to the court, or have their children tell the Judge directly how they feel.

Parents are frequently frustrated when they learn that they cannot communicate this information to the court. Common follow-up questions include “How will the Judge know what my child wants?” or “Why doesn’t my child have a say in the outcome?”

The answer is not that the Court does not care about what a child wants. To the contrary, one of the factors that the Court must consider in determining what is in the best interests of the child is the wishes of the child as relates to parenting time if the child is of adequate age to make that decision. But, having a child testify or having a parent communicate that information to the court is not an appropriate method for conveying those statements. First, your child’s statements are hearsay and inadmissible in court. Second, it is inappropriate to place a child in the middle of a dispute by having him or her testify in court with both parents present.

Then how does the Court know what the child wants? The best way to ensure that your child’s voice is heard is to involve an expert, such as a Child and Family Investigator (“CFI”) or Parental Responsibilities Evaluator (“PRE”). CFI’s and PRE’s will prepare an expert report, which includes an analysis of the best interests of the child. Assuming that the child is of adequate age, the child’s wishes will be included in that report as part of that analysis. The PRE or CFI can also testify at the hearing about his or her investigation and conclusions.

So, while you cannot tell the court directly what your child says, nor can your child testify as to his or wishes, your child’s wishes will not be ignored. As long as you utilize the proper method to relay this information, his or her voice will be heard.