Time was when a child went through a teenage rite of passage with the elders of his or her clan. Such a rite of passage might have included learning a prayer, an important dance, or going off into the woods on a solo adventure/journey.
In modern times, the rite of passage has increasingly been one in which kids come to the courthouse to talk to judges about their living situations. Most judges don’t blatantly ask the children with whom they might like to live, but they will ask them a variety of other questions about who does the majority of the parenting and with whom they have the closest feelings of warmth and love; some judges might just ask a child where they prefer to live as well.
Teens Addressing the Court: Sufficient Age and Capacity to Reason
The CA Family Code, section 3042, is not unlike the code sections of many other states. It requires that the Court hear from a 14-year-old child regarding their preferences (assuming they want to state a preference) and may allow a child under 14 to state a preference, either in Court or to another person the Court appoints.
California Family Code Section 3042 (a) requires that: “If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.”
Section (c) says: “If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so…”
Section 3042 spells out how a child can give his or her preferences to a judge in more detail than many jurisdictions, but, in general, the method is similar in most states. As a child gets older, their voice gets louder. In California, children who are 14 years old have the right to address the court, while the Court may elect to hear from children younger than 14.
Kids in Courtrooms: A Sad Day for Everyone
I am on the record with clients and the Courts as saying that, generally speaking, I do not believe children should come to Court; custody is an adult issue that should be resolved by adults. But there are times when the facts as seen by the parties are so at odds that we must bring the children in.
I always feel it’s a sad day when the children come to court, however. The kids suffer so much anxiety in the lead-up to stating their preferences that the experience is one they may never forget.
I have visions of skinny 12-year-olds slouching in the hallway outside the courtroom, staring down at the floor and trying to control their emotions.
Too often, one or both parents have talked to the child about their preferences – or even coached them into stating that they want to live with one parent or the other. We hope our judges are able to discern what is coaching from what is genuine feeling (and most of our judges seem to be OK at this, but no one is perfect).
Childhood Memories of Meeting a Judge
When I was 14, I remember meeting a judge in his chambers during my parents’ divorce. My younger brother and I had a game plan going into that meeting: we were not going to choose which parent to live with but say we wanted equal time with each of them. They didn’t get along very well, and their divorce was less than ideal, but they were both loving and giving parents and we wanted to share our time equally with them.
I was still awash in emotions about meeting a judge, talking on behalf of my eight-year-old brother, controlling my nervous energy and worry. I didn’t sleep much the night before.
My parents were nervous wrecks, each worried about what I might say. I am certain that we spoke to our parents about it first, but I have no memory of the conversations.
Teens Addressing the Court: The Positives
I have tried to find positive sides to the inevitability of teens coming to court, whenever possible. This is an opportunity for children’s voices to be heard – the only time most of them have their voices heard and considered by someone “official” in the divorce proceedings.
This is what I mean by “rite of passage.” There is something powerful about letting children come to the courtroom and describe their experiences, wishes, hopes, and fears to the judge in the case; it can also be helpful for parents who are so caught up in their own experience of the divorce and custody issues (including emphatically stating what is in the children’s “best interests,” which is usually whatever that parent wants) that they sometimes forget about their children’s wishes.
In some sense, it is the most “authentic” action that happens in an entire divorce case, because even the children who have been coached end up telling the whole story to a judge – who is (hopefully) paying close attention and knows how to ask the right questions.
This can be empowering for the teenager whose voice is often so lost in the divorce process that their needs become almost invisible to their parents. The parents become so intent on “winning” or “sticking it to the other side” that they forget (not always out of malice or neglect, often out of sheer overwhelm) that the children have deep feelings about what is going on – feelings beyond anger or sadness.
I remember feeling embarrassed, hurt, and guilty among other emotions. Mostly, I just wanted things to return to normal again.
Although I am a strong advocate for keeping children out of the courtroom at almost any cost, I do think that this particular rite of passage can have a positive effect on the self-esteem of the children who are sharing their feelings with the Court. If the judge gives them at least some of what they want, it can be an empowering experience for them.
Making Monsters: The Dark Side of Teens Addressing the Court
Easy access to Google has made teens more aware of their power in the courtroom. A teen who has gotten their way from a judge – or one who knows they can address the court if they wish – can sometimes become an 800-pound gorilla, making demands and forcing (almost extorting, really) each parent into greater and greater permissiveness. We see this playing out as disciplinarian parents find themselves on the pointy end of the teen-age stick – saying “she wants to live with her mom because we have rules at my house.”
I had a case a year or so ago where the 12-year-old began cutting herself. That got her into the judge’s chambers quickly. She was getting As and Bs because her stepmother was a teacher and her dad took her phone away until her homework was done. The mom did not care about her grades or her phone. She quickly told the judge that her stepmother was “such a bitch” and that led the father to go from 50-50 custody to the every-other-weekend plan. The daughter’s grades fell to Ds and Fs and she felt free to try to push her dad around mercilessly.
The Dad fought on valiantly to have the Court reinstate 50-50 custody for a couple more years. When his daughter was 15, however, he had a baby with his new wife and told me that “if she doesn’t want to come with me, I’m not going to try to make her.”
What Judges and Lawyers Can Do
We can hear teenage voices and work toward giving them some of what they want with more of what they need. I think some judges and lawyers already do this, but in order to avoid cases like the one I described, lawyers and judges should take a close look at not only what young adults say they want but also their reasons for wanting it. A balance can be struck between letting the teen voice have a place in the courtroom without allowing them to control all of the adults in the room.
They can do this by granting teens some of their requests and dangling carrots for other things – such as having relationships with both parents. I have seen successful parenting relationships with teens that amount to Wednesday dinners or Saturday brunch or getting nails done twice a month. I have also seen judges order parents to get full make-up kits or extra sets of athletic gear to resolve teen worries about their “stuff” being at one or the other of their parents’ houses.
Orders or agreements that encourage visits with both parents, including orders that relieve one parent of “parenting” duties, can be useful: “Parent A, you are ordered not to discipline your child on your time; your only job is to have a good time and rebuild your relationship. Parent B, this is what you wanted, so you are now responsible for ensuring good grades and
Good custody orders give kids some voice in the outcome of their lives but also ensure that they understand that they will not be the only decision-makers. At some level, that’s probably just good parenting; if the parents are having a tough time doing it, this is the type of work that lawyers and judges can do
Report from the Custody Committee of the ABA’s Family Law Section
The Custody Committee’s judges, family lawyers, and psychologists consider and deal with the all-important issue of child custody during and after divorce.
Parental Alienation: 7 Ways to Help a Polarized Child
How family law professionals can help alienated children make and maintain healthy relationships with both parents.
Child Support in a Pandemic-Broken Economy
During this COVID-19 pandemic, support payors and recipients are equally likely to be unemployed, so we must start to reconsider child support rights and responsibilities in light of this new reality.