Should children have a voice in their custody case?

Posted on Sep 15, 2021 by Katie Carter


Custody cases are definitely challenging, and it can be very difficult to tell exactly what’s going on. In Virginia, courts use the ‘best interests of the child’ factors as the standard for making custody and visitation determinations, and the courts are aided by Guardians ad litem, experts, and others to help make those determinations.

In general, children are not called to testify. Though some states have hard and fast rules about when a child is capable of voicing his or her own opinion about custody and visitation, Virginia is not one of them. Speaking technically, a child is a child – and therefore not an adult, and not capable of making a decision – until he or she turns 18.

That doesn’t mean that the child’s preference doesn’t factor in at all. In fact, most of the time, when the Guardian ad litem gives his or her report to the court, the GAL mentions the child’s preference. That preference is often tempered with what the Guardian ad litem feels is best, especially if the GAL doesn’t believe that the child has the understanding, maturity, or experience to express such an opinion. “I want to live with dad because there are no rules there,” would, just as an example, be a preference that really wouldn’t have much weight – obviously, “no rules” shows that the child is lacking in the maturity and judgment needed to really weigh these factors.

Even once the child is an older teenager – 15, 16, 17 – the child does not automatically get a vote in what happens in terms of custody and visitation. Even if the child begs to testify, or to speak to the judge, it doesn’t often happen.

I’ll be honest with you: in my opinion, it is virtually always a mistake to involve the children. Though they are ‘involved’ anyway, in the sense that the Guardian ad litem will talk to them, and their parents may even talk to them, it’s just too damaging for them to really get involved.

No matter how the situation works out, it’s damaging.

Let’s say the court gives the child what he or she wants. The child feels heard and empowered. The child has leverage. The child can say, “If you don’t let me go to the concert, I’ll tell the court I want to live with dad.” The child can use this leverage against either parent in any scenario. It undermines the parent’s authority. The parent probably wonders, too – would it work? Would it be enough for the child to just allege mistreatment to lose or change custody?

When custody feels like it can be determined based on the whim of a child, it’s a dangerous and unhealthy thing.

Let’s say the opposite now: the child doesn’t give the child what he or she wants. The child doesn’t feel heard. The child feels like what she says, or what she thinks, or how she feels, doesn’t matter to the adults around her. She doesn’t feel valued or supported. She feels undermined. Why ask her what she thinks if it doesn’t matter? She feels apathetic, detached, and hurt. What difference did it make, except to do harm to the child?

Not only that, of course, but there’s still risk of actual psychological damage. Maybe the child thinks that she’s able to testify in court, but, when it comes down to it, seeing mom and dad sitting across from each other at counsel table is pretty traumatic. Hurting a parent – and living with the consequences of having hurt a parent after the fact – is hard to measure, but it’s a risk you run. It’s also hard to ask a child about his or her preferences while they’re in the middle of a divorce or custody case. It’s not necessarily the mentally healthiest time for the child, and that may reflect in what they say – or don’t say – to the Guardian ad litem. It’s difficult to really weigh this preference against their mental state, and say what is true and what isn’t.

But what if the Guardian ad litem is a bad one?

Oh, gosh, don’t I know it? Sometimes, the Guardian ad litem is bad. Sometimes, the Guardian ad litem is not bad – it’s just that he or she doesn’t side with you. It can be hard to tell, coming into a case, whether the GAL is actually bad, or whether he or she just has a different opinion than yours.

It’s hard, giving someone who is NOT part of your family and doesn’t understand the dynamics, so much decision-making power. And, it’s true, sometimes, they do a bad job.

I don’t think a bad Guardian ad litem justifies involving the children, though. The risk of injury to the child is ultimately just too great.

I can’t think about this except by thinking of my own children, and what I’d want to happen. I know it’s not easy. I know custody is SUPER hard. Maybe your child’s father is a drug addict, or a narcissist, he’s playing constant gotcha games, or he’s suddenly superdad. Maybe he’s got a terrible new girlfriend, or maybe he’s facing a deployment or a PCS with the military.

There’s nothing in the world more important to any of us than our children, and we’d stop at nothing to ensure their safety and stability. But it’s not always a question of what you want – or what they need – and how to get from Point A to B. You have to consider the risk of damage to your child.

It’s sometimes hard to see, or hard to measure, but that doesn’t mean it doesn’t do damage. In a lot of ways, a divorce or a custody case forces a child to grow up, to see the world through an adult lens, and it’s uncomfortable and unsettling. Children can react in all sorts of different ways. Even the ones who seem to have it all together, who don’t show outward signs of distress, may be struggling in ways that are difficult to appreciate.

I’m not here to give you a parenting lesson. Goodness knows I don’t have it all figured out. I’m just saying that, ultimately, taking care of your children through a custody case is about more than winning custody.

What if dad is an abuser?

If dad is an abuser, I still wouldn’t want to call the children to testify. In those cases, I think the risk of damage to the children is actually even greater. It’s almost like a further victimization of the children, and I certainly wouldn’t want to inflict that on top of what they’ve already been through.

There is a difference between a crappy dad and a truly abusive dad, though, in that with an abuser, there’s often more signs. There may be a therapist, a doctor, or a school counselor who could get involved and testify based on what he or she sees. Maybe, too, the abuse would come out in the conversations with the Guardian ad litem.

With a crappy dad, it can be harder to tie him down or to find specific evidence to use against him. In either case, I fully recognize the difficulty, but I think there’s almost always a better way than actually having the children testify.

You may not be able to see the way forward just yet, especially if evidence is hard to come by, your Guardian ad litem isn’t on your side, and things don’t seem to be going your way. It may be time to chat with an attorney – or get a second opinion, if the one you’re working with isn’t working with you – if you’re feeling hopeless or concerned about the direction of your case.

Ultimately, as unsatisfying an answer as it is, I think that, in custody cases, it’s always critical to be the bigger person. To refuse to talk badly about your child’s other parent, to always set a good example, to turn the other cheek, to be encouraging and supportive of the children in their relationship with the other parent (whatever that relationship looks like), will hold you in good stead. It’s not just about these years now, it’s about all the years over the rest of their lives, and them knowing that their mother did everything they could to let them be children as long as possible, to shield them from the ugliness of the divorce or custody case, and always loved them unconditionally.

It’s not easy. For more information, or to schedule a consultation, give us a call at 757-425-5200.