Speaking to Your Children About Your Custody Case Could Do More Harm Than Good
In part three of this series about the do’s and don’ts of your custody case, I will examine how certain discussions with your children can do more harm than good to your case. As I mentioned in the prior articles, there are sixteen factors that the court must consider when deciding every custody case in Pennsylvania. After going through each of the factors, the court then determines custody based upon what is in the child’s best interest.
Two of those sixteen factors are relevant to this topic. One of the factors is the well-reasoned preference of the child and the other is the consideration of any attempt of a parent to turn the child against the other parent. The exception to this second factor is if there is any abuse involved and reasonable measures needed to be taken in order to ensure the child’s safety.
In order to find out a child’s preference under the first factor, the court will sometimes interview a child during the custody proceeding. The court tries their hardest to avoid this though as the goal is always to keep children removed from the case when possible. The court would much rather hear from the parents themselves or from any evaluators/therapists involved. However, in some cases it becomes necessary for a child to speak with the judge. If a child is interviewed, it is then up to the court to decide how much weight it gives to the child’s preference. Keep in mind, even if a child gives a well-reasoned preference one way or the other, the court still has to decide custody based upon what is best for the child after considering all of the factors and not just because that is where the child wants to live. I have been involved in cases where bright and mature teenagers said they felt strongly that they should live primarily with one parent, but the court ordered otherwise saying it would not be in their best interests. Many times parents will put all of their focus during their case on getting the children to side with them. As evidenced by the above example, even if the judge decides to speak with the child, the preference may not ultimately affect the outcome. More importantly, depending on what is being said during those conversations with your children, the discussions could be held against you under that second custody factor.
There is a delicate balance that has to be maintained between finding out the wants and needs of your child and discussing matters which the court deems off limits. Under that second custody factor, the court must consider whether a parent took any measures to turn a child against the other parent. This could range from telling a child they do not have to see the other parent if they do not want to, telling the children the details that caused the breakdown of the marriage like if adultery or financial problems were involved or outright using derogatory language and criticizing the other parent in front of the children. In the most extreme of these circumstances, a parent can even lose custody if it is found they are alienating the children from the other parent. To the court, the divorce and the reasons behind it are separate from custody. The court wants to provide both parties with the opportunity to parent regardless if they were a bad spouse. During the custody hearing, you will have the chance to say your piece about why you should have custody. You absolutely do not want the court to hear that you were using the children to try and help make that happen.
Navigating through what is appropriate and inappropriate to discuss with children during a custody case can be very difficult, especially for those in the early stages of the divorce or separation. In addition to working with an experienced attorney, we often recommend counseling for the families, so that a therapist or counselor can be involved and help guide the parents through the process. The main thing to keep in mind from the court’s perspective is that they want the children involved as little as possible. The children only really need to know the logistics of the custody schedule. They do not necessarily need to know all of the ins and outs as to why that custody arrangement was put in place. Because even with the best of intentions, the ultimate outcome may be less than desirable and potentially harmful to your custody case.