I have been through the gamut during my four decades of practicing law when it comes to allowing children to give their opinion on matters such as where they want to live and when they want to see their parents. I saw the age a child can do this go from 14 to 12 to 10 then back to 12. I saw the law allow a child to sign an affidavit in the case, to now be interviewed by the Judge in Chambers. The rationale behind all this, I suppose, (because I do not understand the logic behind these schemes), is for the child to have a say in post-divorce life.
Now, keep in mind, it’s unlikely Mom or Dad asked for their child’s input as to whether there should even be a divorce. No, that was an adult decision made without consultation with their kids. Now, however, after the gate to the corral has been opened and the horses let out, we deem it wise and pragmatic to enlist this child’s mature thoughts, feelings, and insight on how we can make this situation better. This entire practice of letting children, at any age, tell judges directly, with no one else around, what the child thinks is best is flawed at best and a disaster at worst. Here are five reasons why we should not allow it.
1. Children, regardless of their age, are simply too young and too immature. Whether a child is twelve or seventeen, most are too young. You would not give your 13-year-old the right to decide what concert he or she will attend and with whom they will go with to the show. You would not give your 16-year-old the right to decide if he or she wants to finish this semester of school because he or she is not having enough “fun” or “it is too hard.” However, we have this Motion to Confer that is a statutory provision enacted by our Texas Legislature that mandates a Judge in a family law case interview the child.
2. Judges do not like it. It takes time away from their job of making decisions in disputes brought before them. Ethically, a Judge is strictly prohibited from having ex parte (one on one without the other side present) discussions about the case with lawyers or the parties. In this situation, they are allowed and told they have to sit down and discuss the contested outcome with the very child about whom they are making the decision. It goes against everything they have been trained to do.
3. Lawyers do not like it. If a lawyer is representing the parent who believes their child will pick them in the auction of best parent available, then that lawyer is either trusting their client is right, serve up the child to the Judge without verifying, and risk your client got it wrong. If the parent did – then you are done for this round of custody the Price is Right. If you are representing the parent whose child has now turned against them, then you have to go through much money, time, and angst trying to get to the truth. Does this child wants a change of view or has the other parent has been setting this child up for a long time with the promises of bigger ponies or new cell phones, alienating the child against your client, or psychologically manipulating the child to their side. Either way, it is expensive, emotional, and with no guiding principles as to how it will end.
4. It can be emotionally damaging to the child and the entire family. There is no way to sugarcoat the fact that when a party files for a change of primary conservatorship or possession time based on a child’s wishes just because they have passed that ripe old age of twelve, you are asking, or telling, that child to choose between Mom or Dad. You do not have to have a psychology degree to figure that one is not going to turn out well in the long run. You would not make your child pick just one of his or her two best friends to invite to a birthday party, so how can you ever justify asking the child to choose from his or her parents?
5. It is a ruse for avoiding child support. I regularly hear my clients’ stories about how the weekend parent is telling their child to just “wait until you turn 12, and you can tell the judge you want to live with me.” The person offering this advice to their under 12-year-old child is often the one paying child support. Budgets are constantly being calculated and recalculated with child support and without child support. It is a double swing in income should you get your child to take your side and come live with you. Multiply that times six years and you are talking some serious cash. There is an easy way to solve this financial motivation which might stop all these motions to have the child confer with the Judge; have the legislature pass a law that mandates child support continue for six months or a year after any change of primary conservatorship and give the court the power to order that child support be paid into a college fund for the child. The parent gets no break for a year, but the child benefits by getting a college fund started or increased. Just as deep throat in the Watergate Scandal advised – “follow the money.” Take away the financial incentive to turn children against their parents and you will, in my opinion, decrease this ugly side of custody by a significant percentage.
The five reasons set forth above are not meant to say all child modification suits brought when a child is over twelve years of age are wrong or brought for the wrong reasons. What it means to say is that there should be no difference in how courts and judges determine what is the best interest of a child under twelve.