How Much Say Should the Children Have in Custody Disputes?

According to the News Times out of Danbury, Connecticut, three siblings have started a petition to change the law with regard to how much say kids have in custody disputes. The children’s parents share joint custody and they believe that they are better able to represent their own needs than the attorney who was appointed for them. The petition drafted by the children proposes that children over the age of 12 could meet directly with the Judge to discuss their wishes in a disputed custody case.

As the law currently stands in California, “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody.” Family Code S3042. Although it makes sense to have the child’s wishes heard in custody proceedings, most people would agree that having a child testify, in open court, in front of his or her parents would be difficult and potentially damaging to the child and parent-child relationship. The petition drafted by the children in Bethel, Connecticut sounds like a good solution. According to the petition, the children would meet with the Judge privately to let their wishes be known. That way, a child wouldn’t have to testify in front of the parents but the Judge would be privy to the child’s wishes, which he/she could take into consideration in making a decision. A California Appellate Court case actually mentioned the benefit of having children testify in chambers in a footnote. In In re Marriage of Rosson (1986) 178 Cal.App.3d 1094, the Judge specifically said that he approved of the notion of children testifying in chambers in order to minimize the exposure of the child to the courts process and to avoid having to put the child in a position of having to choose between the parents.

It remains to be seen whether the Bethel children’s petition will make it to the Connecticut State legislature. Regardless, it is an idea worth considering given how complicated child custody disputes can be. If you have questions regarding a custody dispute and what the extent of involvement your children might have, call Mello & Pickering, LLP to set up an initial consultation.