Does Anyone Listen To The Children?

Too often, no one listens to the children in family law litigation.  Courts often say that children do not decide with whom they are going to live or whether they go on a visit.  Lawyers often argue (successfully) that the most obvious signs of a child in distress (changes in behavior such as bed-wetting, tantrums, etc.) are not evidence that a particular custodial plan is not working because it is not possible to establish definitively a causal relationship between the behavior and the custodial arrangement.

A child’s acting out at the time of a visitation transition is often deemed “normal” and ignored because children may be stressed when leaving a parent.  It may also be used as evidence to support the argument that the child needs to spend more time (not less) at the home of the parent with whom the child is resisting the visit in order to strengthen the parental bond.  At other times, the parent to whom the child clings is blamed for the behavior and is accused of communicating his or her anxiety about the other parent to the child.  This allegation can then become the basis for decreasing the custodial time of the parent to whom the child clings.

Parents who do not send their child on a court ordered visit risk being held in contempt and/or having their custodial time reduced.  Parents who comply with the court ordered schedules may find that the distressed child becomes increasingly difficult to manage and angry at the parent who sends them on visits.  Young children do not necessarily understand the concept of divorce and, if they are not closely bonded to both parents, why they have to leave a parent who may have been their primary caretaker or the home which had been their only residence. 

Further, a parent who questions the distressed child about “what happened at Mommy’s/Daddy’s house” may be accused of interfering with the other parent’s relationship with the child.  Regardless, the child’s answers are hearsay and, unless an evidentiary exception applies, cannot be admitted in evidence through the parent no matter how troubling.  [In those situations, a custody evaluation may be appropriate as an expert’s opinion can be based on facts not admitted in evidence.]

The parent whom the child is resisting may blame the parent to whom the child clings for creating the friction.  It seems to be the rare parent who considers or even allows for the possibility that his/her parenting skills are lacking or that his/her prior lack of involvement with the child or prior conduct contributed to the current poor relationship. 

As all court orders must be followed, what can be done?  In arguing the facts, it is important to be specific, discuss how the child acted prior to the concerning behavior, compare the prior to the current behavior and focus on the reasons why the change in behavior is likely related to the custodial schedule. 

Unfortunately, in the litigation arena, it seems that the parent who directly criticizes the other parent may find him/herself on the defensive.  For example, a parent may correctly point out that the other parent did not dress the child appropriately for the weather and use this fact, among others, in support of his or her position in the custody litigation.  In those cases, the complaining parent may be labeled controlling, focused on the minutiae of daily care, dismissive of the other parent’s parenting or unable to recognize the importance of the child’s relationship with the other parent.  It may be helpful to consider such possible counter-arguments when framing an issue and delivering a critique. 

Children often do not have a voice in the proceedings and, when they do communicate through their actions or words, there are significant evidentiary bars to the admission of that evidence.  There are also risks for the parent who presses the court to diminish the other parent’s custodial time based on the child’s conduct.  However, if the argument is made, the facts need to organized in a coherent manner with a unifying theme and supported with verifiable evidence in a manner that persuades the court. 

There may be only one child but there are two parties and two stories.  Each party believes that he or she is “right” and should “win”.  So who is a “right” and who is “wrong” and what happens to the child?  That question is often answered – or the answer obscured – by the artful telling of the story. 

This post is provided for general informational purposes only and does not constitute legal advice or create an attorney-client relationship.  © 2014 by Leslie M. Jordon.  All rights reserved.