In Massachusetts divorce and custody cases, many parents believe that if the child(ren) could just speak with the court, they would express their desire to be with one parent or the other. For many reasons, the courts do not wish to have these conversations with children, especially young ones. It often places the children in the very difficult position of choosing one parent over the other, or in the very least, expressing a desire to spend the majority of time with one parent. Children are already in the middle of their parents’ divorce, and expecting them to issue an opinion regarding preference of custody places them in an even more tenuous position.
Another reason that courts treat the opinions of children regarding custody with great caution is the unreliability of the statements. Such opinions may be offered by children as a result of undue influence and pressure by parents – especially guilt. Moreover, many young children simply do not understand the gravity of the situation; and may use the opportunity to get back at a parent.
If the court does feel it is appropriate to speak with a child, it will often do so in the judge’s chambers without either parent present. Attorneys may accompany the children, but the judge likely will ask all of the questions. Depending on how the conversation goes, the judge may or may not take the child’s preferences into consideration.
However, the older the children are involved in a custody matter, the greater the weight given by the court to their preferences and opinions. While there is no hard and fast rule regarding what age the court determines is “old enough,” judges are more likely to consider the preferences of older teenagers as opposed to younger teenagers and tweens. If a child can provide an articulate rationale behind his or her preferences regarding custody, the court will certainly take them into consideration.
Regardless of the children’s ages when telling the court of their preferences, it is never the absolute deciding factor the judge considers regarding custody. The judge decides what weight to give the children’s opinions, and then considers them along with all of the other factors and evidence presented in the case.
Another option the court has in protecting the rights of minor children involved in custody battles is to appoint a Guardian ad litem (GAL). The GAL will investigate all relevant factors; interview many people familiar with the parties (e.g., teachers, coaches, etc.); and prepare a report outlining recommendations regarding the best interests of the child. Through this process, the GAL can present the children’s opinions and preferences to the court. And, while the GAL does not have to agree with the children in this regard, the GAL does have a duty to communicate the children’s preferences to the court.
Contact Attorney Klovee today
Attorney Rosanne Klovee has vast experience working with parents, children and GALs in amicable custody agreements as well as hotly-contested custody situations. She will help you navigate the process and answer your questions and concerns along the way.