Presenting the Child’s Voice

Children caught in the middle of a divorce or family dispute may have thoughts, feelings, opinions and things that they want to share. In Oregon, the desires or preferences of a child may be considered by a Court in making a decision about custody or parenting time. But presenting a child’s preference in court isn’t as straightforward as you might expect.

How can you share what a child wants with a judge in a divorce or custody dispute?

As with many things in family law, there are many things that people think they can do to present a child’s preference that usually don’t work quite as well as they might hope.

For example, a parent can tell the court what he or she believes the child’s preference to be. However, there’s a reasonable chance that a parent’s report or claim may be looked at as biased. It’s almost like a child telling his babysitter that his parent’s always let him eat a bowl of candy before bedtime. It’s probably going to be met with at least some skepticism because the person making the claim stands to gain a lot if they are believed.

Some parents even suggest that they could have their child write a letter or give some kind of recording to the court. This approach is problematic because the statements in the letter or recording will likely be inadmissible hearsay. If the writer or speaker isn’t present in court to be evaluated or cross-examined, the Court likely will not consider that evidence.

Some parents will suggest that the child can come into court and testify. Although it is possible, it is usually avoided at all costs due to the emotional toll that it will undoubtedly take on a child to have to testify in front of their parents and a room full of strangers and potentially face cross-examination from a skilled attorney.

One approach that is used with some frequency is to have an expert perform a custody and parenting time evaluation. These evaluations involve having the child and the parents meet with a professional evaluator who is usually skilled as a licensed clinical social worker or psychologist. The evaluator spends time meeting with the child, speaking with the parents, reviewing the child’s records, conducting tests, and investigating any and all issues that they believe are important to help them formulate an opinion and recommendation for the court. This can help streamline the information that is presented to the court and also help by providing an opinion that is supported by an educational background that the court may not otherwise have the benefit of enjoying. However, these evaluations and the recommendations are not binding on the court. These evaluations are also very costly and time-consuming, so they are usually reserved for younger children and more complex situations.

Another possible avenue to have a child’s preference and opinions considered by the court is to have a child’s attorney appointed to represent the child. A child’s attorney may serve as a best interest attorney or assume a more traditional advocacy role. In other words, the child’s attorney, after meeting with the child, speaking with the parents and conducting their own investigation into the situation, may report to the court regarding what they think is in the child’s best interest or may advocate to the court about the outcome that their client prefers. Whether the child’s attorney is appointed as an advocate or as a best interests attorney is determined by the court, but it is usually guided by the age and maturity level of the child.

A child’s attorney is usually much more affordable and faster than a custody and parenting time evaluation, but it is also not binding on the court and will likely cost the parties some fees for the attorney. A child’s attorney can be appointed by the court on its own motion or at the request of either or both of the parents, but it is also mandatory if the child requests an attorney. In Oregon, if a child requests that the court appoint an attorney to represent them in the case between their parents, the court must appoint an attorney to represent the child. The involvement of a qualified child’s attorney can create some uncertainty, but it can also be a very helpful relationship for the child during a dispute between parents. Providing the child with someone who is on their side and who will listen to them, keep their conversations confidential, and stand up for them in court can provide the child with some empowerment in a situation where they may otherwise feel powerless.

A final approach to consider would be to have an honest conversation between both parents and the child. Undoubtedly, whether to use this approach really would depend on the maturity level of the child and the ability of the parents to coexist respectfully. If the child is too young or immature or the parents simply cannot have a conversation with the child without it devolving and becoming harmful for the child, then this approach is certainly not helpful. However, for children who are mature enough and who have parents who can set aside their differences and feelings in order to come together and have an honest conversation with their child, this would likely be the least invasive way of hearing what your child has to say. If successful, this approach could save the parents from the financial and emotional costs of litigation while also limiting stress for the child. If you were going to use this approach, it would be good for the parents to present as a unit that is working together for the benefit of their child. It would also be advisable to speak with a parenting coach or counselor who could help advise on the best ways to ensure a productive conversation between the parents and their child.