Can My Child Talk with Judge About the Custody Decision?

The short answer to this is "maybe."  We briefly touched on this subject in discussing whether a child can decide who should have custody.  Kentucky Statute allows a court to interview the child in order to ascertain the child's wishes as to a custodian and visitation.  It is within the court's dissection as to whether the court actually will interview the child.  At least one case has made it clear that the decision as to whether to interview the child in a custody case is up to the court and is not required at all.

The decision as to whether the court will interview a child is very fact dependent.  It will depend on the age and maturity of the child.  The court will also take into consideration whether the opposing party objects to the interview and why.  The court will also take into consideration whether there is information or testimony that can only come from the children due to hearsay concerns.

During these interviews, the judge will interview the child in private, but is required to make a record of the interview.  Normally, the court will keep the interview confidential and sealed unless there is good cause to release a copy of the recording (such as for an appeal).  Rarely does a court actually ask the child where she wants to live.

In the years that I have been litigating custody case, I have been involved in several cases where the judge interviews the child.  Before a parent chooses to ask the court to interview the child, there are two things that should be considered.  The first is that these interviews tend to be extremely underwhelming.  Children often behave in a manner like when you take your car into a mechanic and it never makes that same sound that caused you to take it to the mechanic in the first place.  Similarly, children will say one thing to their parent, but then clam up and refuse to talk to the judge.  That is totally understandable when you stop and think about it.  This is a complete stranger whom the child has never met before.  You cannot expect the child to just completely open up about some of the most intimate details of his/her life.  Admittedly, the judge should make an effort to make the child comfortable and encourage the child to talk about these issues, but judges have varying degrees of ability to do that.

The second point to consider is the fact that child custody litigation is extremely stressful not only on the parties but often especially on the children.  Putting the child directly in the middle by talking to the judge may not be the best option for the child's mental health and wellbeing.

The decision of whether to ask the court to interview the child is not one to be taken lightly.  Before making that decision, you should consult with a skilled family law attorney.  If you have more questions, contact the Alford Law Office.

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