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How is the Child’s Voice Heard in Custody and Parenting Time Disputes?

| Apr 8, 2021 | Child Custody |

Navigating a custody or parenting time dispute can be a complex matter, especially if there is little to no communication between the parents.  Parents often have conflicting ideas about what they believe is best for their child and what the child wants to happen with custody and parenting time.

Understanding the Wishes of the Child

Many parents erroneously believe that once a child reaches a certain age, the child is allowed to choose where the child lives.   Depending on the child’s age, it may be appropriate to directly ask the child’s preference, but it should be clear that the child is not being given the authority to decide.  While the wishes of the child is a relevant factor to consider, Minnesota law only considers the preferences of the child if the child is of “sufficient ability, age, and maturity to express an independent, reliable preference.”  Minn. Stat. § 518.17 subd. 1(3).  It is ultimately the judge’s responsibility to make these decisions when the parents cannot agree.

A child should not have to carry around the burden of trying to please one parent while simultaneously trying not to hurt or disappoint the other.  The best thing a parent can do for a child is to reassure the child that the parents are figuring it all out and everything will be okay.  Parents need to let kids be kids and find emotionally safe ways for the child’s voice to be heard in custody and parenting time matters.

Hearing the Child’s Voice

As a general rule, children should not testify in court, be asked or allowed to speak to the parents’ attorneys, or be directed to send letters to the judge.  On rare occasions, a judge may request or allow a child to speak to the judge in a setting that protects the child’s emotional well-being as best as possible.

There are other ways, however, that a child’s voice can be heard in a custody dispute that puts additional layers of protection to safeguard the child’s emotions.  The weight a child must carry if that child believes the child is responsible for the outcome of a custody dispute can be a weight too great for that child to bear, and the parents and attorneys should strive to protect the child from shouldering this burden.

One option for hearing the child’s voice in a protective setting is for the parents to have their child see a therapist to help them process the conflict between their parents and learn about the child’s wishes.  The therapist then shares that information in a general way to the parents.  Therapists have techniques to work with children of all ages.  They may do play therapy or talk to them about their lives, their homes, what they like and don’t like, and what works and doesn’t work.  Depending on the child’s age, the therapist may help them articulate what they want their parents to know to help their parents make a decision about how much time they will spend time with each parent.  The child’s therapist can then share the information with the parents and the attorneys, if attorneys are involved, so the parents can structure a meaningful custodial arrangement that takes into consideration the messages presented.  This process removes the children from having to directly share their thoughts in front of the parents,  from having to “choose” a parent, or from trying to protect a parent’s feelings.  Children really do care about their parents and usually do not want to hurt or disappoint them.  Kids just want things figured out so they can be kids.

There is also a formal mediation process called child-inclusive mediation.  In this process, the parents hire a therapist or child development specialist to talk with the child one or two times.  Instead of reporting back directly to the parents, the therapist shares the information in a confidential mediation session to help the mediator work with the parents to create a custody and parenting time arrangement that aligns with the feedback.

Another way a child’s voice may be heard is through a custody or parenting time evaluation.  The evaluator typically interviews the child, observes the child and parent interaction, and looks deep into the life of the family to determine the child’s needs and how each parent can meet those needs.  When appropriate, the custody evaluator can assess the child’s preference and incorporate it in the evaluator’s recommendations.  The recommendations are given to the parents and their attorneys and are typically incorporated into a written report that describes in detail the analysis used to make the recommendations consistent with the best interest factors set forth in Minn. Stat. § 518.17.  If the parents are still not able to reach an agreement after receiving the evaluator’s recommendations, the report and recommendations are provided to the judge for use at the child custody hearing.  The judge often accepts the recommendations made by the evaluator, in whole or in part, because the process is very involved and child focused.