In child custody disputes, whether initially made with a divorce or paternity filing, or on with a modification petition, the court decides child-related issues before it by determining what is in the best interests of the child. With most cases, a party seeking custody, as well as the court, want to “hear” from the child in some way. This blog explores the four key ways a child’s voice, views, and positions can be presented to a court for it to consider in making a custody decision in the child’s best interests. Are these useful in your case?
The first is to request a Guardian ad Litem (GAL) be appointed in a case. Typically, the GAL meets with and gets to know the parents and children to get a sense of what custody arrangement is best for the child and makes a recommendation to the court. GALs are routinely used and appointed on motion of a party for a GAL appointed. GALs may be attorneys, licensed clinical social workers, or certain other trained professionals. GALs typically prepare reports for the court with recommendations the judge may find useful in making a custody decision; the GAL may also be called to testify about their report at trial.
Second, in cases with high acrimony, parental alienation, physical or mental health issues at hand, a forensic custody evaluation may be conducted. This is a more advanced version of what a GAL does in making recommendations to the court about what is in the children’s’ best interests. The individual and groups who perform these evaluations are doctorate level clinicians who, in addition to doing interviews and observing interactions with the children, may also conduct psychological testing for general personality traits, but also specific testing for alleged conditions, such as a parent’s propensity for violence. Finally, forensic custody evaluators conduct additional work by gathering and collecting collateral data, which helps validate (or invalidate) certain claims. An example of collateral data sources are police reports and protective orders, to speaking with teachers, doctors, and therapists. As with GALs, forensic custody evaluators prepare reports for the court on the issue before it; and they often testify about the report at trial.
A third—but rarely used—way to make a child’s position known to the judge deciding the case is to call him or her as a witness at trial. At one time children under the age of 10 were presumed by statute to be incompetent witnesses and could not be called at trial. Now this standard is more relaxed. So long as the child is old enough to tell right from wrong, he or she may be called at trial. However, this is a taboo topic in the legal field because there is a consensus between attorneys and judges this is a bad idea and puts the children squarely in between their parents, effectively having to testify for one parent or against another and can cause emotional trauma. However, in any specific case, this may be a viable option, such as with older children or in situations with alleged physical or mental abuse.
Finally, when the child needs to be heard by the judge, a party may motion a court to conduct an “in-camera” interview. If granted, the judge interviews the child (in a variety of ways) at least outside of the presence of his or her parents to find out what the child desires and why.
In child custody litigation, these are four tools you may want to consider having your child’s voice heard in your trial strategy and the case for your child custody position. They are but a few of the variety of tools available to make your custody case. To prevail, you must establish and the court must find your position is in the children’s best interests. Are any of these tools appropriate for your case? Talk through it with your attorney. This blog was written by attorneys at Dixon & Moseley, P.C. who handle child custody litigation of all types across the State of Indiana. This blog is written for general educational purposes only and is not intended as legal advice or a solicitation for services. It is an advertisement.