Kids in divorce court: Understanding the impact and how legal professionals can help
Jude Egan and Lisa Strohman.
A rite of passage into adulthood can take many forms. In some traditions, it might be learning a prayer or important dance, or going off into the woods on a solo adventure/journey.
A more modern rite of passage for kids is going to the courthouse during their parents’ divorce proceedings to talk to judges about their living situations, about who does the majority of the parenting and about whom they feel the closest feelings of warmth and love.
The California Family Code’s Section 3042 is not unlike the code sections of many other states. As children get older, their voices begin to get louder. In California, children who are 14 years old have the right to address the court, while the court may elect to hear from children younger than 14. Other states use the language “sufficient age and capacity to reason” or something similar.
From Jude Egan
I remember meeting a judge in his chambers around the age of 14 during my parents’ divorce. My younger brother and I had a game plan going into that meeting: We were not going to choose which parent to live with, but say we wanted equal time with each of our two parents. They didn’t get along very well, and their divorce was less than ideal.
But they were both loving parents, and even though we got different things from each of them, we wanted to spend time equally. That said, I was still awash in emotions about meeting a judge, talking on behalf of my younger brother, controlling my nervous energy and worry, and not sleeping the night before.
Each of my parents was a nervous wreck, worried about what we might say. (I am certain that I spoke to them about it first, but I have no memory of the conversations.)
I am on the record with clients and the courts for saying that, generally speaking, I do not believe children should come to court; these are adult issues to be worked out by adults. But there are simply times when the facts, as seen by the parties, are so at odds that the only thing to do is bring the children in.
From Lisa Strohman
As a child involved in a bitter divorce that would last my entire childhood, I can recall mandatory meetings with psychologists, court consultants and judges who apparently wanted to hear something directly from me. What I know now as an adult is that the legal system cannot possibly understand the emotional burden placed on a child during a divorce.
I was being interviewed, talked to, and ultimately forced to testify against either one or both of my parents. The emotional turmoil felt at such an early age created scars that lasted a lifetime. Lifelong trust issues emerge when an adult who promises you can trust them then uses your words to gather evidence to remove you from one of your parents.
One of my biggest concerns about the courts and teens testifying is the age assignment of 14—it is too random. At age 14, most teens are going through puberty, which means they have an explosion of neuronal growth in their brain coinciding with a healthy dose of hormones. It is pure chaos emotionally and intellectually—and the behavior in teens reflects it. Give a hormonal, emotional, frustrated kid the ability to weigh in on legal proceedings, and the result will be unpredictable at best.
Are they complaining about Mom because she limits their time online at home? Do they want to stay with Dad because he is more permissive, and they have free rein on the weekends without a curfew? Or are they thoughtfully giving input about what is best for their lives in the long term after weighing all the evidence and parenting options? I can tell you which one I argued for—and (hint) it did not involve weighing evidence.
Coming to court: the positives
We have tried to find positive sides to the inevitability of teens coming to court: This is an opportunity for their voices to be heard, and it is the only time most of them have their voices heard and considered by someone “official” in the divorce proceedings.
Letting children come to court to describe their experiences to the judge in the case can be an empowering exercise—it can also be helpful to parents who are so caught up in their own experience of the divorce that they sometimes forget about the impact it’s having on their children.
In some sense, it is the most authentic action that happens in an entire divorce case, because even the children who have been the most thoroughly coached end up telling the whole story to a judge who is paying attention and knows how to ask the right questions.
This also can be empowering for the teenager whose voice is often so lost in the process of the divorce that they become hidden in all of the action—older teenagers are often literally ignored. (Judge: “I can’t order my 17-year-old around; how will I order yours around?”)
Parents become so intent on “winning” that they too forget that their children have deep feelings about what is going on—feelings beyond anger or sadness. Many feel embarrassed, hurt and guilty, among other emotions. Mostly, they say they just want things to get normal again.
So, while we are strong advocates for keeping children out of the courtroom at almost any cost, we do think that this particular rite of passage can have a positive effect on the self-esteem of the children being asked to share their feelings with the court. If the judge gives them some of what they want, they can feel empowered.
Making monsters: the dark side of the teen courthouse visit
In an era of increasing social media and online communication, teens in particular are aware of their power in the courtroom. Many of their friends will already been in court, particularly when we include expanded friend networks from online forums.
Teens who have gotten their way from judges or know they will be addressing the court can sometimes sit in the power position, making demands and forcing parents into greater and greater permissiveness. Disciplinarian parents could become fearful of laying down rules, while permissive parents might find themselves the preferred parent. It becomes a race to the bottom, with fewer and fewer boundaries and obligations.
Anxious, self-conscious or depressed kids can shut down or act out as the meeting dates get closer. Even though they might meet with a judge in the judge’s chambers, it is not uncommon for even talkative kids to clam up. Even great judges are a little awkward with kids. (It’s not “normal” for a 14-year-old to be sitting and chatting with a 60-year-old man whose name isn’t “Grandpa.”) Coaxing kids out of their shells to get valuable information—or, for the talkative kids, discerning what is real—takes some skill.
What judges and lawyers can do to help
Aside from doing everything in their power to keep kids out of the courtroom, we can hear teenage voices and work toward giving them some of what they want without giving them everything they want.
Lawyers and judges should take a close look at not only at what young adults say they want but their reasons for asking for it. A teen’s voice have a place in the courtroom without letting it control all of the adults in the room. This is especially true of lawyers for kids, who may find themselves advocating for a child’s wishes over their interests.
Successful parenting relationships with teens can be had with Wednesday dinners or Saturday brunches or getting nails done twice a month (or 50-50, or anything in between). Some judges order parents to get full makeup kits or extra sets of athletic gear to resolve teen worries about their “stuff” being at one or the other of their parents’ houses.
Good orders give kids some voice in the outcome of their lives but also ensure they understand that they will not be the only decision-makers—they almost always encourage a strong relationship with each parent.
That’s probably just good parenting, but if the parents are having a tough time doing it, lawyers and judges can do the work for them.
Jude Egan is a family law specialist certified by the California State Bar Board of Legal Specialization who graduated from the University of California at Berkeley School of Law in 2004. He wrote his doctoral dissertation in jurisprudence and social policy. Egan has litigated over 1,000 family law cases of all different types and has been published internationally in numerous legal, trade and academic journals.
Lisa Strohman is clinical psychologist and attorney who completed a joint program of law and psychology at Villanova University and Drexel University. Strohman is widely known for her advocacy and education around mental wellness as it relates to people’s digital lives. She has worked with thousands of parents, schools and children around the globe.
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