Even though when we talk about child custody we refer to the best interests of the child, the law generally does not include the child directly in the process. The parents are the parties and they advocate for custody positions they believe in the best interests of the child.
Historically, courts have assumed parents served as proxies for the interests of the children. For a child of a young age (under seven), the mother was presumably the best spokesperson for the child. More modern statutes now treat parents as equal at all stages of child development. However, modern statutes have also given children more representation through the appointment of a guardian ad litem, who has the role of investigating a case from the perspective of the children and advocating for the interests of the children. Generally, a court will not hear from a child through witness testimony, but rather through the impressions of the parents and the guardian ad litem. However, our statutes instruct that a child capable of expressing a custody preference (usually twelve years or older) can be part of the consideration in a custody award. So, today a court hears from the child under certain circumstances, albeit faintly.
Should the child have a greater role in the litigation component of the process? Most experts in the legal and psychological fields would suggest that would not be a good idea. The dissolution of a family can be very difficult for children under the best of circumstances; bringing the child directly into the litigation by appearing in court and speaking to a judge or questioned by attorneys could range from stressful to traumatic. It is doubtful that most children would have so much more to offer the court that it would overcome the potential costs in becoming part of the litigation process. Indeed, the origin of the guardian ad litem emerged from the concern that the child should have an advocate to represent his or her interests but without the child having to appear in court as a litigant, to stand before a judge and feel like he or she must betray one of the parents.
But the courtroom is not the only place where custody can be determined. Parents have various options to resolve custody issues in a more collaborative manner, utilizing mediation. In these environments, should the mediator incorporate the child directly in the process?
Traditionally, mediation occurs only with the parents. A mediator will meet with the parents together and individually, in different sessions, to determine how close or how far apart the parents are on key issues of property, custody and support. With regard to custody, the mediator will ask each parent to submit a proposed parenting plan and explain the basis for his or her custody preference and schedule of physical custody. With that information, the mediator can work with the parents to reach a compromise that meets the needs raised by the parents. Critically, in this form of mediation, the parents alone speak for the interests of the children and the mediator rarely meets with the children to discuss their wishes directly.
Mediation has been designed to help the parties – the parents – reach a quicker and mostly conflict-free resolution of their issues, including custody. Putting the mediator in the role of an interviewer of the child would move outside the traditional role of the mediator evaluating information delivered to the mediator by the parties. But should that be so? Should the mediator be so limited in the information gathering process? Should the mediator take on some of the role of a guardian ad litem? In essence, should children have a place in the mediation process?
In our next post, we will evaluate the advantages and disadvantages of such a proposed system.
If you have questions about children and their role in divorce mediation, contact us – we can help.