The main factors all relate to what are the best interests of the child and that includes the following:
- what the relationship with each parent has been with the child,
- what the child has been used to in terms of time actually spent with each parent,
- how to best share the child with each parent, so the child gets the benefit of the best of what each parent has to offer, now that they are no longer living together, in a way that is the least disruptive of the child’s life.
Does the Judge ever ask the child what they want?
Judges will sometimes ask the child what they may prefer in terms of living arrangements, especially with children who are nine or ten or older. This trend was sparked by public hearings held a few years ago where several adult children spoke of being children of divorce and that they wished they could have been heard during that process.
This highlighted the need to give children the opportunity for input, provided that the child actually wants to give input during their parent’s divorce. A judge would never force a child, for example, to choose between two parents, but if an older child expresses that they want to be part of the decision then judges may then listen to the child and consider their stated preferences as part of the custody decision making
What happens when you believe the child has been coached or bribed to state a preference for one parent over the other?
Where is there is a strong belief that a child has been coached or bribed somehow to state parental preference then that is brought to the attention of the court mediator who is handling the case for the court. The court mediator must determine whether the child is doing this out of fear or reward, and part of that includes whether the child being influenced by one parent or are they trying to play one parent against the other.
If the mediator gets beyond these potential issues, then the child is interviewed in a professional and non-threatening way, and then their preference is evaluated and considered. If it turns out that the stated parental preference is suspect in origin or nature, then it will likely be disregarded by the court.
Is it ever necessary or appropriate to hire experts like child psychologists to examine the child?
Hiring a professional to evaluate a child will depend on the circumstances of the particular case. If a child displays maturity and does not seem to struggle with any major emotional issues then there may be no need to have a specific professional evaluation of the child during the divorce itself. Usually if the child is struggling their emotional or other issues and may need a spokesperson to help them articulate their feelings and/or concerns, then that may be the time to bring in a child expert to assess and assist the child address their issues.
Sometimes as part of the divorce process, the Court may order a full psychological evaluation of both parents and that would include interviewing the children together and separately from their parents to determine what may be the best arrangement for the child going forward.
This is a very expensive and time-consuming process and as a result is not often used in the course of a divorce. The court mediator is usually well able to assess and evaluate an older child’s stated preference.
Do children ever have separate counsel?
In extremely high-conflict divorce situations, the court may appoint a lawyer to represent the interests of the children separately from both parents. When the Court determines that neither parent seems to be focusing on what is actually best for a child, then they will appoint separate counsel but those are extreme situations.