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Where Does a Judge Interview a Child?

In those circumstances in which a child’s comments will be at least heard, parents often want to know, “Where does a judge interview a child?”  Followed by, “Can I be in the room?”

This doesn’t happen in every circumstance.  However, when it does, the child will be interviewed alone.  It’s usually done to avoid any undue influence the parent(s) in the room may have on the child’s actual comments.  They may be afraid to give an honest answer because it might be hurtful to the parent.

Typically, the interview will take place in the judge’s chambers (her/his actual office).  Both lawyers are generally present.  The judge will usually begin by asking relatively simple questions to allow the child to feel more comfortable in the unfamiliar surroundings.

As a family law attorney, I’m in favor of giving the child the opportunity to state opinions about the situation, preferences and/or concerns.  I’d like to have more conversations involving the question, “Where does a judge interview a child?”

We often forget that when a divorce happens, it’s not just the parents who are going through it.  The children are absolutely impacted.

Even though Kentucky doesn’t give the child the right to make the custody determination, if the child is mature enough and able to articulate sound reasons or opinions, I believe she/he should be heard.  Now, the question of maturity can be subjective, but it’s obvious to the judge when the child is articulate enough to state an opinion.  The important part of this is allowing the child to speak honestly.  As emotional as divorces are, a parent can exert influence on the child even without actually trying.

It’s also quite possible that the child may be able to emotionally recover from the shock of a divorce, if she/he knows the was an opportunity to speak openly with the judge.  Nevertheless, counselors and therapists should be considered as safe resources to help the child cope with the sudden changes.

Will the Court Interview My Child?

During a divorce proceeding, there are many things and experienced family law attorney will do to position her client favorably, argue for rulings and to work diligently to achieve an equitable outcome.  These are the things you’d expect of your attorney.

One approach that’s often asked is, “Will the court interview my child?”  This is a mixed bag, for a number of reasons.  It’s quite possible that your child is articulate and has a definite preference regarding the various issues.  However, the court is also aware that a child can potentially be manipulated (both emotionally and economically).  There are times when determinations need to be made regarding whether the child is expressing her/his actual feelings.

In a typical civil procedure, the attorneys would call witnesses and experts to testify.  In family court, it’s not uncommon for experts and third-party evaluators to testify regarding specific issues, reports and recommendations.  The risk to putting a child on the stand is that you might be surprised at what actually is said.  Sometimes this can work in your favor, but it may also work against you.

Family law judges, as well as both attorneys, understand that a child is caught in the middle during a divorce.  The world has she or he knew it is changing rapidly.  Emotionally, the child may experience natural instincts.  One of those, especially if you ever raised a teenager, is for the child to strictly consider what’s in her/his best interest.  One of the primary risks we need to consider is whether the testimony will be reliable, or whether the child is making statements to ensure she/he gets to live with the parent who might enforce less discipline or has more goodies to offer.  While these temptations may seem terrific to a child, they don’t always benefit the child in the long run.

If it’s early in the case and my client asks, “Will the court interview my child?” I have to admit that we don’t know yet.  The court isn’t required to do so.  As the facts are collected and we get a feel for what the primary issues will ultimately be, I’ll have a clearer picture as to whether or not that might happen.  Again, could it?  Yes.  Will it? Potentially.

The Emotional Toll of a Divorce

The emotional toll of a divorce can often be much more than people anticipated.  Yes, there are those times in which one party sees the dissolution as a ticket to her/his new beginning.  While that may be the case, when you consider the stress and the disruption divorce causes, many people struggle – at least for a while.

Unfortunately, the divorce process involves a level of conflict where money and children are involved.  You’ll find yourself asking how you ever fell in love with that person in the first place. 

How you exit the marriage, when children are involved can determine how manageable the next several years are going to be.  Remember, like it or not, you’re going to have to communicate with your ex-spouse on matters involving schooling, extra-curricular activities, medical issues, holidays and a whole host of other issues.  Even though you’re no longer spouses, you are still parents.

Another issue involved is the breaking of extended family bonds.  If the marriage has been ongoing for a number of years, it’s quite likely that you’ve developed relationships with the extended family of your spouse.  The breakdown of the marriage, more often than not, also brings with it the breakdown of those extended bonds.  The disruption, and potentially the loss of these relationships adds to the emotional toll of a divorce.  After all, these are often the people with whom you spent holidays, vacations and other important life events.

I was interviewed on CNN about this exact issue.

It’s important that you find a healthy outlet for your stress and anger.  Consider joining a gym.  Take up a new hobby to occupy your mind and give you time to simply exhale.  You may consider going back to school as a way to channel that energy.  Whatever it is, focus on something that will help you to meet new people and inspire a sense of self-confidence, self-worth and fulfillment.

The emotional toll of a divorce might feel overwhelming.  Even so, it’s important to realize that what you’re feeling right now is temporary.  Wounds heal.  Feelings change.  New people enter your world.  Take your time in deciding what’s right for you.  Then, most importantly, take those first few, but important, steps in discovering and defining the new you.

Does the Child Have Input into Custody Decisions?

When a couple files for divorce and children are involved, child custody issues arise.  It’s not uncommon for clients to ask, “Does the child have input into custody decisions?”  Basically, do their child’s wishes relating custody play into the judge’s determination?  There’s also a common misconception surrounding this question.

Judges normally make decisions based on the current laws and where discretion is allowed, they attempt to make decisions based on the best interest of the child or children.  In deciding which parent should have physical custody, there are a number of factors to be considered.

Initially, one of the parents may concede that it would be better to have the child live with the other parent.  Visitation and other co-parenting issues could then be determined and agreed upon.

However, there are times when both parents are open to physical custody.  It’s possible that one parent believes the child has a strong preference.  However, in Kentucky, the law doesn’t actually consider the child’s direct input.  So, does the child have input in custody decisions?  No.  If one side attempts to prove that the child wants to live with them, it can be dealt with as hearsay.

It’s fairly difficult to win a motion based on the child’s preference (either real or assumed).  There seems to be an urban legend (e.g. misconception) that once the child becomes a teenager, the court will listen to his/her opinion.  This simply isn’t true.

The more successful way to get a child’s preference entered into the record may be to have a therapist document why it would be more beneficial for the child to live with a specific parent.  The therapist may ask the child directly.  Based on the child’s response, the therapist would then have to substantiate how and why this would be beneficial to the child.  Some are hesitant to go to far in this area.  However, expert testimony is often relied upon by the judge, especially when confronted with complicated matters.

As I’ve written in previous posts, there is always the option of mediating this decision to avoid having it left up to the judge.  There’s also the possibility of filing a post-decree modification to change the primary custody, should circumstances merit a reconsideration.

Do Step-Parents Have Custody Rights?

A step-parent can be a stabilizing factor in the life of a child, especially if the other parent isn’t present in the child’s life.  This can happen if the biological parents were never married, or if the divorce occurred when the child was young.  It can also happen because the step-parent is a warm and loving part of the child’s life.

However, statistics indicate that subsequent marriages tend to struggle and fail at higher rates.  When this occurs, there’s always a question, do step-parents have custody rights?

The simple answer is no.  The biological parent will normally have custody rights, but step-parents do not receive legal, custody rights as part of the marriage.  There can be exceptions due to a step-parent adoption, but again, the simple answer is they usually have none.

Does This Mean They Can’t Be Involved?

Interestingly, assuming there is a meaningful bond between the child and step-parent, it’s possible the biological parent will make allowances for the step-parent, but these are not legal rights.

Not every divorce ends in acrimony.  There are cases in which the parties realize there are too many complications to continue.  It’s possible that the goodwill established during the marriage may actually be worth preserving for the sake of the child.

Again, do step-parents have custody rights?  No, but it is possible to make arrangements to enable the step-parent and child to have limited or on-going interactions.  This can be complicated, especially if the biological parent is ready to move on or if the marriage ended poorly.

What’s Normal?

Life is full of twists and turns.  What is the normal family structure?  Does “normal” even exist?  The answers to these questions are different for each person, based on her/his unique experiences.  While the court typically doesn’t award custody, that doesn’t mean individuals are prevented from pursuing arrangements they feel are beneficial to the child or children.  After all, even the court attempts to make decisions in the best interest of the child.

In this particular situation, actual custody isn’t a right.  There’s always a chance interaction can still be part of the child’s normal experience, if the parent feels it would be beneficial.  If the step-parent is a loving and nurturing individual who put in the effort to establish a healthy bond, maybe it’s something to consider.

Change the Parenting Schedule

It’s not uncommon for divorced parents to decide to change the parenting schedule.  Deviating from the original schedule outlined in the divorce decree may need to happen as the children grow older and begin to get involved in other activities.  Complications can arise when these changes are made, even if both parties agree, but the court is unaware of the new schedule.

If parents want to change the parenting schedule doesn’t have to involve a judge or the court.  If the parties can reach an acceptable agreement, nothing prohibits them from implementing it.  However, should there be a need to go back to court, an undocumented change can lead to unnecessary confusion.

It’s a good idea to notify at least one of the attorneys that there’s an agreement to change the parenting schedule.  The terms or arrangement should be outlined in a letter.  To be extra certain, both parties should sign and date the letter.  There are other step you could take, but this action would definitely help to provide clarification.

I’ve mentioned in several other videos that the parties can negotiate just about anything.  In this instance, they may need a mediator to help them work through various considerations.  An experienced, family law mediator has probably seen a similar situation and can use her/his perspective to help the parents cover all the bases.  An advantage to this is that the agreement will be done properly, which will minimize the involvement of the attorneys and limit additional legal fees.

Where Should You Begin?

As a first step, you may want to have a discussion with the other parent to see if they’d be willing to agree to a change to the parenting schedule.  Often, there may be benefits to both parties to do so.  If there’s an interest in proceeding, try documenting how the new schedule would work.  Be prepared for some give and take.

Next, consider having an attorney or mediator review the revised schedule.  The key issue is to ensure you and your former spouse have considered various aspects of the change.

Finally, once the revisions are agreed upon, send it to one of the attorneys to have it officially entered into the record.

Remember, life evolves.  The needs and desires of the parents, as well as the children, are going to change over time.  Flexibility can make it less stressful on everyone.

 

Does Fault Impact Support?

As an experienced, Louisville divorce attorney and mediator, I understand divorce can be an extremely emotional process for one or both of individuals in a marriage.  When issues such as infidelity are involved, the betrayal, pain and anger can cause the aggrieved spouse to want to use the court system as a way of getting revenge.  I often hear the question, “Does fault impact support I might win?”

There are many reasons an individual may want to use the divorce process as a club.  An affair can have devastating consequences beyond the simple fracturing of the marriage covenant.  The embarrassment, the shame and other emotions are raw.  It’s completely understandable.  However, Kentucky has a no-fault system.  As I discussed in a previous video and blog post, it only takes one spouse to petition for a dissolution, regardless of the wishes of the other spouse.

That being said, even in situations involving infidelity or other breaches of trust, does fault impact support?  As it relates to the level of spousal support, child support or other financial obligations, no it does not.

Now, given the nature of the circumstances, you and your attorney may be able to negotiate for additional considerations.  Again, I’ve commented on the advantage of using mediation, in a previous video and blog.  Remember though, the court is under no obligation to increase support based on something someone did, as it relates to marital infidelity.

Revenge-Based Divorce

Revenge-based divorce cases are especially challenging.  A spouse may be feeling her/his only means of punishing the other person for walking away, is to bury them in endless motions and ongoing litigation.  One of the challenges is that the pain can stoke intense emotions, which can completely cloud a person’s judgement.  Even if her/his attorney negotiates a solid agreement, the individual may be less focused on moving forward and more so on attempting to bet back at the other person.  Eventually, the judge will lose patience with this approach.  In the end, it could actual begin to negatively impact the person’s position.

Does Domestic Violence Impact Child Custody?

Domestic violence is a major issue in divorce cases involving children.  As a Louisville divorce attorney, I’m frequently asked, “Does domestic violence impact child custody?”  Sometimes it’s the spouse who hopes to protect herself and her children from an abusive partner.  In other situations, if may be a spouse who’s concerned the other spouse may intent to make accusations of domestic violence in an effort to gain an advantage.

I blogged last month about child custody and domestic violence.  It’s a complex component in an already emotionally charged situation.  This video underscores the difficulty in reaching a co-parenting agreement.  Remember, the court places immense focus in trying to do what’s in the best interest of the children.

Where there are real and documented instances of domestic violence, the court and the experts involved in third-party evaluations, are seeking to ensure the safety and security of the children, in addition to their emotional well-being.

Does domestic violence impact child custody?  Yes.  The presence of domestic violence in any relationship has both an immediate and a long-term impact.

In the short-term, judges may find it difficult to expose the children to more dysfunction.  In fact, depending upon the evidence, domestic violence could result in severe limits (including limited, supervised visitation) on the time a violent parent has with his/her child.

In the long-term, domestic violence can result in severe emotional trauma for the child or children.  These emotional scars can cause relational-dysfunctionality as the child gets older and seeks a partner for herself/himself.  Often, physical and emotional abuse experienced at an early age can lead to issues with self-confidence, coping skills and many other aspects of a person’s life.

Evaluators and judges realize these factors.  Nevertheless, the judge must make a determination based on the benefit to the child/children, as well as the other parent.  Safety and security are valid concerns.

Does domestic violence impact child custody?  Absolutely.  I may also have lasting effects on the children as they grow older.

Third-Party Evaluations in Divorce

Divorce cases understandably involve perspectives from two different sides of the situation.  In an effort to reach a fair and equitable dissolution of the marriage, especially when it comes to matters involving children, the court may require third-party evaluations.  The cost of the evaluations is the responsibility of the individuals, not the court.

Third-party evaluations are performed by experts.  These experts are assumed to offer neutral findings based on interviews and other types of analysis.  These can include:

  • Psychological evaluations
  • Custodial evaluations
  • Parenting Coordinators
  • Counselors
  • Therapeutic Parenting Counselors
  • Guardians ad Litem

Judges typically places a high-level of deference to the final reports.  They can have a significant impact on the way a judge rules on various issues.  The parties can still voice their opinions on how they think the findings of the third-party evaluations should be applied, but the judge makes the final decisions and determinations.

Experienced attorneys understand the importance of carefully reviewing the reports, before they are presented to the court and entered into the proceedings.  There may be an opportunity to question the expert and to seek to bolster or even minimize the impact of the findings.

Not every case will require third-party evaluations.  Some of the less complex cases (such as an uncontested divorce) may be resolved based on agreements reached by the two parties.  Another example might include a divorce without minor-aged children.

In divorces involving high-asset parties with complex investment portfolios, or a family-owned business, the attorneys might recommend the involvement of a financial expert to perform forensic accounting and business valuations.  Again, the judge will use the findings to help determine support levels, asset division and other issues.

While the involvement of third-party evaluators can add substantial cost to the divorce, their findings often add clarity to sensitive and/or complex situations.

Complicated Issues with Step-Parents

After a divorce, it’s natural for the individuals to begin moving forward with life.  As this happens, other relationships can eventually form and may lead to a new marriage.  The situation can be exciting, but realize there can also be complicated issues with step-parents.

If both individual enter this new relationship, each having children of their own, it can be especially complicated.  It may seem normal to attempt to alter parenting schedules so that the children from the previous marriages can begin spending time together as a new “family.”  This isn’t necessarily a bad thing.

However, the other spouse from the previous marriage may have difficulty accepting your decision to attempt to blend your new family.  You may also encounter disagreements if the step-parent attempts to discipline or control the step-child or children.

As an attorney, I prefer that the dealings with the previous spouse or issues related to the previous marriage be dealt with directly by my client, not the step-parent.  It’s not that the new arrangement is a problem, but it can, and usually will, complicate matters.

I’ve seen rock star step-parents form strong health bonds with step-children, and even the former spouse.  It can work.  It takes work.  Nonetheless, not everyone in the situation may be as excited about the new relationship (including the ex-spouses and even the children).

There are complicated issues with step-parents.  At times, it can be very messy.  Statistics show that subsequent marriages also tend to be more fragile.  This is for a variety of reasons.  Should the new marriage also end in divorce, step-parent issues (along with emotional issues related to the relationships) can be difficult to navigate.

Having seen many families attempt to restart, I would caution you to communicate with your new spouse and set the proper boundaries (as well as expectations).  I know you’d like to see things return to “normal,” but remember every person has their own sense of what normal really is.  There will be challenges for you as a parent, for the step-parent, and for the children involved.  It can and does work, but go into it with your eyes wide open.  Most importantly, be prepared to take a deep breath when you need to take one.