Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)

Children Should Be Heard in Divorce Cases

Last week’s column discussed how Family Court judges are reluctant to allow the children of divorce to testify where they would prefer to live in the belief that it would be too traumatic for them or not in their best interest.


I disagree. Letting children be heard on issues important to them is generally much more helpful than harmful, even when the court’s ruling isn’t aligned with the child’s preferences. By participating, the child has “ownership” in the plan approved by the court and is provided the sense that their feelings are important.


The story of the two families that opened last week’s column involved children living, unhappily, amidst warring parents. I believe the 12 year old girl provided the option to live with her aunt while her parents worked through their difficulties, and who was eventually adopted by the aunt and uncle, ended much more positively because she was invited into the process. Conversely, the little boy “assigned” to live with mom after the divorce continues to struggle because the court never sought his opinion on the matter, which was a strong desire to live with his dad.


Rightly, judges should be concerned about how to “hear” the children in a way that is conducive to getting the child’s true feelings, while protecting the child from pressure by one or both parents or the anxiety that they will be displeasing one of their parents by expressing a preference. One way this can be accomplished is for the judge to question the child privately in chambers without the parents being present, although their lawyers must be.


Many judges have been reluctant to take this step because of concern about possible damage to the child, although recent appeals court rulings have directed judges to at least interview children once they become teenagers, and to allow older teens to testify in open court. I believe, in most cases, judges are being unnecessarily cautious. The unfortunate fact is that children living in a home breaking apart are already exceedingly anxious about what will happen to them and keeping them out of the loop often heightens their fears rather than subduing them.


In some cases, children are assigned their own attorney, called a “Guardian Ad Litem” (GAL), to make sure their interests are looked after. The best GALs interview the parents and then the children with and without each parent present, as well as teachers and other caregivers to inform their recommendations to the court. Ideally, their report clearly identifies what their client’s (the children) want as well as providing their own opinion on what they believe would be in their client’s best interests. Sometimes, though, the factual recounting of the child’s desires will be minimized in favor of what the GAL believes is best.


Of course, the child’s desires is only one of many factors that need to be considered and it’s rare that children, much less mom and dad, get the exact arrangement they want. But, the child’s viewpoint can influence the amount of time granted with one parent or the other, or the activities that are included within the parenting plan.


In one of my cases, getting the children heard kept their most important “parent” from being cut out entirely. This was a custody battle between a father, who had walked away from his two kids at age 2, and their maternal “step” grandmother, who had raised them since then. After several years with the grandparents, the maternal grandfather died and dad reappeared on the scene demanding custody of the children he had abandoned. With grandfather no longer alive, the “step” grandmother (grandpa’s second wife) had no legal standing with the children. Only by convincing the judge to allow the girls, now pre-teens, to testify, could the judge hear how the “step” grandmother was the real mom and she was awarded significant amounts of time with her two little girls.