There is significant debate about how much a child’s voice and opinions should be taken into account during a high-conflict custody battle. Claims of parental alienation (one person’s attempt to turn the child against the other) are very common during high-conflict cases.
One of the most terrifying experiences for many parents involved in a custody battle is having to put significant decisions about their children’s safety into the hands of a third party, whether it is a custody evaluator, guardian ad litem, or attorney for the child.
For a protective parent, whose biggest concern is the child’s physical and emotional well-being, it can be nerve-wracking to wonder how to get a third-party evaluator to see the reality of what’s going on.
In a live interview, California attorney Dr. Jude Egan, of Egan Law, shared some insight on his experience as a minor’s counsel in determining what the “best interest of the child” may be. Here are excerpts from what Jude had to say during our live interview on this topic…
I’m trying to make sure they’re okay and that they’re happy and healthy in both households.
The thing to watch for is when there’s, “I only want to be with this one parent and I don’t want to talk to the other one.”
When that happens, then you’re really looking to find out if this is something that apparently they don’t want and what has caused that. Or is it something with the other parent which is sort of pushing them in that direction?
And the only way to get that out of them is to just talk.
I try to ask questions, especially of little kids, that will encourage them to tell me things that couldn’t be manipulated by a parent, like, “What do you do at Dad’s house?” and “What time do you normally go to bed?” or “Do you guys play video games?” or whatever to try to get to them.
Then we can start talking about other issues, like co-sleeping, for example. We have kids who are co-sleeping with a parent and they’re ten or eleven years old. And the kid might want to cuddle with Mom or Dad at one parent’s house because they have to sleep alone at the other parent’s house. But they know they’re not supposed to tell me that.
So we have to sort of talk around it until I see if I can pull some information out that would be helpful. And that sometimes takes two or three meetings.
Sometimes I’ll have a face-to-face meeting when we first meet. And I’m a really big man. So when I have little kids in, I have to almost sit on the floor with them, because the size difference isn’t so obvious to them. We’ll spend a few sessions like that.
I will say, “Okay, let’s check in. Can we just talk for 5 minutes? What’s happening?”
They also tend to know when trials are coming up. And that’s another way that I know they’re being told things because they’ll say, “Well, you know, Mom says, we have court, “ and we might talk a little bit about that.
And I try to learn in that case how much they know about it, and how they could have known it.
Many court orders note that kids should stay out of legal proceedings unless they are directly involved. Should they be kept ignorant?
We want them to be, but I try to balance it. I think with older kids, it’s impossible. It might be more stressful for the older kids to not know anything and then they have a case.
A few years ago, a husband tried to kill his wife and the kids. They were trying to shield the kids from knowing. But Instagram was killing him: the kids knew because everybody was talking about it. And to not talk to the child about it at all, to try to pretend like this wasn’t going on, was causing even more stress. Now that’s way outside the norm. But they know things are coming up.
There’s a healthy way to talk about what’s going on. With my own daughter, when she would ask, we would say, “Look, Mom and I are going to make the decision together,” or, “We’re going to ask the judge, but we’re going to make that decision.”
However, when kids are really involved, like when an 18-year-old writes a declaration into a case (say, for another sibling,) and they’re saying, “You know, Dad’s a bad parent,” then I really start to wonder right now, why is this one writing that if ALL the kids are involved…what’s happening with the younger ones?
It is so important to find a skilled and sensitive evaluator, hopefully with training in domestic violence, who is also willing to invest time and detailed observation into your own individual situation.
Often, a court will appoint someone, but, if at all possible, do your research ahead of time and have a couple of names ready to suggest, just in case.
The bottom line is getting ourselves and our children through this process (and thereafter!) as healthy and unscathed as possible…
(Note: This snippet is taken from our longer live interview, “A Lawyer Who Gets It” with Dr. Jude Egan of Egan Law. Check out Part 1 of this blog: Who Determines The Actual “Best Interest of the Child?:” The Delicate Balance Between Minor’s Counsel/Attorneys for the Children and Guardian Ad Litems ).