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How Should Children’s Voices be Heard in Custody Battles?  

June 7, 2021
Family Law Advisory

Truth be told, I did not realize (or particularly care) that Brad Pitt and Angelina Jolie's custody battles are still continuing after five years. However, we recently learned that the judge in the matter awarded Pitt temporary joint legal custody, and that Jolie is upset that the judge barred their children from testifying in the case. Apparently, Jolie wanted the teenaged children to provide input as to their experiences, needs and wishes regarding custody per a California statute which allows children over 14 years of age to testify.

Michigan does not have a specific statute addressing child testimony in custody determinations, but there is nothing that bars children from testifying. Most parents and attorneys prefer to keep children out of the legal process, and it is generally frowned upon if someone suggests putting a child on the stand – it seems unsavory and opportunistic and places the child in the middle of the parents' battle. Will the parents coach the child? Will the parents retaliate against a child for unfavorable testimony? Will the child feel guilty for contributing to one parent's misery? The risks seem to outweigh the benefit. However, there are situations where children are the only witnesses to domestic violence or substance abuse or where children are very vocal about wanting to participate in the process that determines their whereabouts until they are 18 years old.

The "reasonable preference of the child" is one of the 12 best interest factors (provided in MCL 722.23) a judge must consider in determining custody and parenting time (if the child is old enough to express a preference). However, how a judge determines that preference is left to the judge's discretion. Most will consider a child's age, maturity and other factors in deciding whether to have a child testify, or more likely participate in a private conversation with the judge in chambers. Per MCR 3.210(C)(5), the interviews must be limited only to a child's custodial preference, and the court is not required to disclose what the child said. The court can choose to interview a child even if the parents do not agree. Whatever a judge learns from such interview is only to be considered for the reasonable preference factor and not other factors.

Sometimes the court is able to gain additional information from children if the case involves a guardian ad litem ("GAL") or parenting coordinator ("PC"). These third parties usually have broad powers to interview children, teachers, therapists and other people who may share otherwise inadmissible information that can be used to make recommendations to the court. Most judges appoint GALs and PCs whom they have worked with in the past and trust, thus they are likely to follow their recommendations. Sometimes family therapists can be productive resources in gleaning children's interests in contentious situations. Parents and attorneys should be careful to select therapists trained in family therapy. Attorneys for parents should avoid speaking to the children to avoid any appearance of impropriety or influence. Also, this keeps the attorneys from being potential witnesses in the case.

Parents should carefully consider whether or not to involve a child in a custody battle. The instinct to protect children and keep them out of the fray is sound, however children today are savvy and vocal. The trend is to seek their input in decisions that affect their lives. The key may be to find a process or third-party resource who is trained to work with children and minimize undue influence. Parents should seek attorneys who are experienced, concerned about the children's best interests and open to creative solutions in custody battles.

For more information, contact a member of the Varnum Family Law team

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