Silenced Victims in Child Custody Disputes

Child Custody disputes can be contentious affairs filled with allegations and pain.  Custody litigation is a myriad of paperwork, court hearings, mediations and tedious negotiations between the parents all in an attempt to convince the world of what is in the best interests of the children.  Often times, one of the parents who is seeking custody, maybe even fighting the hardest, is the parent who is guilty of physical, emotional and even sexual abuse.  In those cases, the victims are not always just the other parent.  Lost in this endless shuffle of wants and desires  and even fears  are the littlest victims: the children.  In most states, children simply have no voice in the very process that determines what is in their best interests.  They are in fact, silenced by the very system that is supposed to be looking out for them.

In California, a Court is supposed to make custody decisions based on what it deems to be the best interests of the child.  While perpetrators of abuse against children have a tough road in seeking and obtaining custody and visitation rights of their minor children, the road is not closed to them.  The best interest of the child standard must be put into context.  California public policy states that a child’s best interests  are best served by having frequent and continuing contact with both parents.  While the statute states that acts of violence or other abuses are to be considered by the Court, the Court only considers those acts as a factor among other factors.  And throughout this weighing process, children have little to no say. Taken to the extreme, an abuser may still have the right under a Court order to see his/her children even if the child tells the mediator or Court that they do not want any contact with the abuser.

Under California Law, the Court may appoint a lawyer to represent a child if the Court deems that the appointment is in the best interests of the child.  Minor’s Counsel is the Court’s answer to giving the child a voice.  Minor’s Counsel represents the child(ren) not the parents.  It is his/her job to discuss the aspects of the case with the child(ren) and make sure the child(ren)’s opinion is heard in Court.  If the child(ren) are too young to make rational, considered decisions Minor’s Counsel will determine what they feel is in the best interests of the child(ren) and offer that to the Court. The lawyer appointed must meet a minimum standard of qualifications that are different in every county.  Generally the appointment is only made after a request by one of the parties. However, the appointment is rarely made at the request of the child as children do not technically have the right to litigate in a custody dispute as they are not considered parties to the case.  If an appointment is made the parties typically split the cost of Minor’s Counsel or, if unable to do so, may have fees offset by the Court.  And given the always tight budget constraints of the Court and the current budget constraints of parties, the Court rarely uses its power to give a child a voice due to financial considerations.  Further, California Courts are sometimes unable to offer minor’s counsel even when appropriate and they are willing as the State set hourly rates are so low many of the volunteering lawyers have opted out of being minor’s counsel in this economy leaving Courts, parents and children without means to give the child a voice. What this means is that even under the current process, the Court rarely appoints counsel to represent the child.

So what about those children that are older, more mature and more able to articulate what they want and why?  They are still too young to hire their own attorney because they are too young to enter into a contract.  Even if they convince a parent to hire an attorney to represent them, there is no mechanism in California for a child subject to a custody dispute to walk into Court with a lawyer.  There is nothing under the statutes that state a child cannot do this, but most Judges are uncomfortable with the very notion of a private attorney appearing for a child and rule that the Attorney cannot speak on behalf of the child.

Other states are looking into this issue though.  For example, the State of Utah through its ethics advisory opinions believes that if the child is “mature” enough, then the child could have independent counsel.  But the State of Utah does not have a statue granting such a right, only advises the attorneys to take it upon themselves to determine whether a given child is mature enough to have their voice heard.  Then the Court must be convinced of the child’s maturity.

Children sometimes are the greatest victims of abuse and yet have no means to tell their story when decisions about their future are at stake.  It would seem that Courts could make better decisions if they truly knew what the children are thinking instead of relying on the representations of self interested parents involved in a custody dispute.  But right now there is no real mechanism to give a child a voice.  There seems to be something inherently unfair about someone being locked out of the very process that is determining their best interests and their future.

Dena Bez is a licensed California Attorney whose practice focuses on family law including divorce, custody disputes, domestic partnership issues and estate planning.

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