There was a thoughtful Op-Ed piece in the May 20, 2012 New York Times titled “In Whose Best Interests?” by Ruth Bettelheim, a marriage and family therapist. Ms. Bettelheim argues that child custody should be revisited every two years and that children’s voices should be given much greater weight in deciding their custody.
The example she provides to justify frequent modifications of child custody arrangements describes a problem I frequently encounter when every-other-weekend visitation schedules collide with the desire of teenagers to spend more time with their peers (and less time with their parents):
In reality, a custody agreement that meets the needs of a toddler is unlikely to be right for a teenager. Imagine yourself as a 13-year-old who wants to spend more time with your friends over the weekends. Unfortunately, your parents are divorced, and you spend weekends with a parent who lives two hours away. You would be unlikely to request a change in custody because it would mean altering a longstanding agreement and plunging into a morass of conflicting loyalties and guilt over betraying whichever parent would lose out. Faced with such dilemmas, children in divorced families frequently end up suppressing their own needs to reduce conflict with, or between, their parents. Even when children are driven to speak up and request custody modifications, their voices carry little, if any, legal weight.
As for giving children greater voice in their custody determinations, she notes:
Rendering children voiceless and powerless to meet their own changing needs, or burdening them with guilt if they try to do so, is in no one’s best interest. It either creates hardship for children who grin and bear it or instigates a string of provocative and damaging behaviors in those who embark on increasingly desperate attempts to make someone notice that something is wrong.
Although the United Nations Convention on the Rights of the Child states that children have a right to meaningful participation in decisions affecting them, adults, from some misguided notion of protection, often seek to keep children from making choices in custody matters. But accepting certain kinds of responsibility for their own lives and learning from the consequences of their decisions, even poor ones, is vital for the growth and well-being of all children.
Once children have reached the age of reason — generally agreed to be about 7 — they should be recognized as the ultimate experts on their own lives. We all resent it when others say that they know better than we do how we feel and what is good for us. Nevertheless, we subject children to this when we call in experts to evaluate their lives over a period of days or weeks, as part of the custody process, instead of just listening to them.
Finally she explains the methodology she would use to revisit custody biannually:
To remedy this, all parenting plans should be subjected to mandatory binding review every two years. The review should include a forum for children to speak privately with a mediation-trained lawyer. The conversation should be recorded to ensure that the child was not pressured or asked leading questions. Children should not be forced to state preferences but invited to speak if they choose. Many children will decline, as they are deeply reluctant to hurt a parent. But occasionally, the need to advocate for themselves outweighs these fears. When they do speak up, their wishes should be honored as stated, not as interpreted by an expert or lawyer.
The lawyer should meet with all family members, individually and as a group, to ensure that the child’s wishes are respected in the next two-year parenting plan. Children’s wishes should be decisive, in place of those of experts and judges, as long as at least one parent agrees with them.
South Carolina only allows child custody and visitation to be modified upon agreement of the parties or upon a showing of “a substantial change of circumstances.” Whether the changing needs of children as they age is “a substantial change of circumstances” is a judgment call with family court judges have myriad views. Some judges are quite willing to revisit a custody determination merely because the children’s needs or desires have changed. Others resent such modification cases and will sanction the parent who brings them by making that parent pay the other parent’s fees. Our family court system, as currently constituted, is poorly designed to revisit custody frequently. Often it takes two years or more just to get from filing the modification case to trial.
While the current system doesn’t serve children well, I don’t see that Ms. Bettelheim’s suggested remedies are workable. Biannual child custody mediations are only going to succeed if both parties mediate in good faith and if the parent who prefers the status quo is willing to put the children’s needs ahead of his or her own needs. Moreover, when a parent’s good faith belief of the child’s best interests differs from the child’s wishes, mediation will not resolve that dispute. Further, our court system is inadequate to the task of protecting children from parents whose feelings get hurt when the child reveals information that parent preferred remained secret.
Ms. Bettelheim correctly identifies flaws in a system that fixes child custody and visitation when the child is young and fails to flexibly address the child’s needs and desires as the child ages. I suspect most folks who practice within the family court system notice these flaws. However, biannual mediation is most likely to succeed when it involves the very parents most able to work together to adjust the child’s schedule as the child ages–and these parents can likely resolve such disputes without court involvement. For the biannual mediations that do not succeed, biannual custody litigation will subject child and their parents to almost constant litigation.
There are obvious problems in using a litigation system to resolve issues such as child custody, in which disputes tend to be emotional, continuous and dynamic. Yet biannual child custody mediation may be one of those ideas that appears congenial in theory but is ineffective in practice.