Many parties to a child custody dispute ask me whether their children will have to testify and what weight will the Court give to the child’s opinion and thoughts. Parents are understandably concerned whether a child will be asked to choose sides in this battle between the child’s parents. This is so, not only because a parent might have concern that the child might select the other parent; a thoughtful parent is concerned that their child would be put in that position at all.
If you are involved in custody litigation in a courtroom setting, in most jurisdictions, a Judge will interview the child or children involved. Jurisdictions have different procedures as to how this interview is conducted. In Pennsylvania, while the attorneys have a right to be in the room with the Judge, the parents do not. Further, most attorneys will decline the opportunity to be present when the Judge interviews the child.
The process of a child meeting with a Judge is scary business for a child. Obviously, the Judge is a stranger and is not known to the child. The Judge is going to be asking for information, which a child might believe is very personal and private. It is not uncommon for a parent to tell their lawyer that their child has strong opinions regarding the custodial issue; however when the child gets in front of the Judge, the child “clams up” and is unable or unwilling to share their thoughts.
In Pennsylvania, most Judges will meet with a child beginning at approximately the age of six. Each Judge has their own process and their own areas of inquiry. Children are understandably anxious in the days leading up to this meeting.
Once a child reaches a certain maturity, a child’s thoughts will be given added weight. The question as to what the age of the child needs to be, for their thoughts to have weight, depends to a large degree on the maturity of the child. Suffice it to say that by the age of 11, 12 or 13, and certainly higher, a child’s observations can have an impact on a Judge’s decision regarding custody and custody schedules.
Involving a child can be avoided in a mediation process. Generally, the Mediator will not meet with the child or children. This anxiety, on the child’s part, can be avoided completely in a mediation process. The Mediator will speak with the parents and assist the parents at arriving at a custodial schedule which the parents believe will meet the child’s best interests.
Mediation is a less combative, less stressful process for all concerned. If you are concerned about the impact, upon your child, of involving your children in your custody concerns, consider mediation rather than litigation. Putting the children’s interests first, over the interests of the parents, is what a healthy mediation process is all about, when custody issues are being discussed and negotiated.
Think long and hard before you leap into litigation. Discuss mediation with your spouse or partner. If you want more information, on the litigation, mediation or the collaborative law process, please give us a call. We’d be more than pleased to discuss it with you.