Children often want to be heard when their parents separate and divorce. How can children have a voice without exposing them to courtroom battles?
by Nancy Stassinopoulos, Attorney and Certified Family Law Specialist,
Stassinopoulos & Schweitzer, LLP, San Diego, CA
The traditional Family Court system, which is based on litigation with attorneys for each parent, tries to help families with children to resolve child-sharing disputes, but with mixed results. Although mediation at Family Court Services (now called “child custody recommending counseling”) is required before a judge makes decisions on child custody and visitation, by the time parents walk into the court mediator’s office, they are often entrenched in their positions and unable to agree on a parenting plan. So they end up in the courtroom, where the adversary process causes more acrimony between the parents, and where the children suffer from the toxic fallout.
The Family Court judge has the option to appoint an attorney for the children, called “minor’s counsel.” This attorney will interview the children and represent their interests in court hearings. Usually, the court appoints minor’s counsel only in high-conflict cases, where the children need their own advocate.
The California Family Code requires the judge to consider the wishes of the child if the child is of “sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation.” Recently, the California Legislature has decided to give children more of a role in the legal process. If a child who has reached the age of 14 wishes to address the court regarding custody or visitation, the child shall be permitted to do so unless the judge determines that it is not in the child’s best interests. The judge can even permit a child younger than 14 to testify in certain circumstances.
Many family law attorneys think this new law is a bad idea, because it puts the child in the middle of the conflict and exposes him or her to the highly charged atmosphere of the courtroom. A parent who wants his or her child to testify in court may not be thinking of how harmful that could be for the child. The child may not realize that he or she will have to be placed under oath, sit in the witness box and be questioned by the attorneys for the parents, usually with the parents present in the courtroom.
The collaborative divorce process gives the children a voice in the decisions about where they will live, and how much time they will spend with each parent, while protecting them from the conflict of the courtroom.
In a collaborative divorce, the parents, together with their collaborative attorneys and coaches, may decide to use a “child specialist” as part of their Collaborative team. The role of the child specialist is to work with the parents and the children to provide each child with the opportunity to express their concerns, to give the parents information that will help their children through the divorce process, and to assist the Collaborative team in developing an effective co-parenting plan.
The goal of the collaborative divorce process is to help the family during their transition from one home to two homes. Children need to participate in the decisions made by the family, in a manner that is appropriate to their age. They may have concerns about their pets, their bicycles, and their friends, and they may find it hard to share these concerns with their parents. The child specialist in the Collaborative team can listen to the children and make sure their questions are answered and their needs are met.
Collaborative divorce allows children to have a say in their own future and the future of their family, without feeling pressure to “choose sides” and without the intimidation of the courtroom setting – a healthier outcome for everyone.