In the early stages of a dissolution where the parties have minor children, parents are often concerned that the court hear their child’s point of view as to custody and visitation first-hand. Particularly where the parent believes that the children will express a strong desire to spend time primarily with him or her, it is not uncommon for a parent to want the judge to talk with the child.
In practice, it is rare for the children who are subject of a custody or visitation dispute to speak with the court. Only in the most severe circumstances will judges order them to court, and generally only as a last resort after exhausting all other options.
Parents should refrain from involving the children in disputes, or promising they will be able to talk to the judge. There are other methods the court can use to ensure it has the information it needs, while minimizing exposure to the litigation process and protecting children from their parents’ conflict.
Some courts will appoint an attorney to represent the child in custody proceedings. Referred to as “minor’s counsel” in Los Angeles county, this is an attorney directed by the court to make a recommendation as to the child’s best interests considering all factors. While the minor’s counsel generally has wide discretion in terms of how to conduct the investigation, it often involves multiple interviews with the children, and sometimes the parents. Payment to this attorney is allocated between the parents, or may be authorized through a county program for later reimbursement by the parents.
A child custody evaluation also gives minor children an opportunity to express his or her desires. Types of evaluations range from those completed by the court in a few hours, to more in-depth private evaluations. The needs and financial abilities of the parties often dictate the type of evaluation to use in a case, which may be selected by party stipulation or court election. Evaluations are paid up-front, with fees allocated between the parties.
But it is important to remember that minor’s counsel and evaluators are charged with making recommendations as to the child’s best interests. It is inherently difficult for a child to choose between parents, and asking him or her to do so may yield inconsistent or disingenuous responses. Because of this, preference alone is not determinative of best interests, and may yield entirely to other important considerations.