Children's Voices Are Not Always Heard in Divorce

On behalf of Robert Burch of Burch Shepard Family Law Group posted in Child Custody on Wednesday, June 13, 2012.

For a couple going through a California divorce, the process may prove an emotional rollercoaster. However, for children not knowing where they will live or how much time they will spend with each parent can be frightening. In addition, children may have little say in it all.

In a recent op-ed in the New York Times, Ruth Bettelheim, a marriage and family therapist, addresses some common concerns children may have. Most divorces include a parenting plan that lays out a custody and visitation schedule. But children are rarely involved in the process. A custody arrangement reached at the time of the divorce typically governs the schedule of children until they turn 18.

Best Interests Factors

In determining custody and visitation arrangements courts review the "best interest factors of the child." Some of the factors include:

  • The health, safety and welfare of the children
  • Whether there is any history of abuse
  • The amount of contact with both parents

A custody agreement reached for a toddler, however, may no longer be a good fit for a teenager. A teenager may want to spend a weekend with friends, but has to travel several hours for parenting time. This may create conflict between a teenager and the parent who has weekend parenting time, if the teen is missing fun with friends.

Parents are slow to ask for a change in custody, because it generally requires a drastic change in circumstances and altering a long-term agreement.

One option to provide more flexibility is to allow children to have some say in how parenting time is scheduled at the age of reason, which is commonly agreed to be about age seven. Bettelheim advocates a mandatory binding review every two years where a family lawyer could meet with all family members, individually and as a group, to make sure the children's wishes are respected.

In California, it has been recognized since 1970 that both parents have an equal right to spend time with their children. The voices of children also need to be a part of the custody discussion and parenting plans need some flexibility to adapt to changing needs.

Source: The New York Times, "In Whose Best Interests?," Ruth Bettelheim, May 19, 2012