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Letting the Child decide is more complicated than you may think

Follow “Ask Carolyn” on TwitterCarolyn

Dear Carolyn:

I am in a custody battle with my ex-husband.  My nine-year-old wants to live with me.  Can my nine-year-old simply tell the judge this, and then we are done with this mess?  I have heard a child can talk to the judge in “chambers,” but I am not sure what this means.

Carolyn Answers….

I am sorry that you and the Father were unable to decide together as the parents what is best for your child.  But, if the parents cannot decide, a person in a black robe will make the decision on what the “best interests” of your child is.

First, and I want to say this gently to you, a nine-year-old does not have the maturity to make the decision of where he or she should live and what is in his or her “best interests,” generally. Cases of abuse and neglect are perhaps different, but you do not mention that the child is being abused or neglected by the Father. This answer assumes that there is no abuse or neglect of your child by the Father.

Second, the court does not give “final say” to anyone. The court hears the evidence and judges the credibility, maturity, and objectivity of witnesses, and then the court, in its wisdom, renders a decision. Given the age of your child, in my experience, the judge would give little weight, most likely, to the opinions of a nine-year-old on what living arrangement is best for the child. The court may even consider whether you were influencing the child against the Father, whether intentionally or unintentionally, and give the Father even more time to offset your influence.

          Third, would the child be allowed to testify in “chambers”? Generally, when an attorney uses the word “chambers,” the word refers to the judge’s office or perhaps a conference room in the judge’s area of the courthouse. Under the law of North Carolina, both parents MUST AGREE for the judge to talk to a minor in “chambers.”  If both parents do not agree, then the child must take the witness stand just like any other witness. The child would have to be “qualified” as a competent witness on whether the child knows the difference between truth and a lie.

When both parents do not agree to allow the child to testify in “chambers,” I have had judges ask the parents to leave the courtroom and have only the lawyers for the parents and the judge and courtroom clerk present. While having the parents out of the courtroom is less intimidating, the parents are “technical” parties to the proceeding and have a right to “confront” witnesses with cross-examination under the U.S. Constitution.

In my opinion, placing a nine-year-old on the witness stand is only called for when that nine-year-old is a witness or victim of a unique fact, such as in abuse cases. One example would be that the child actually witnessed something, and perhaps no one else witnessed it. Your child’s opinion on where he or she wants to live could end up back-firing on you.

I wish you luck seeking the best interests of your child. You might also read my blog regarding having a child custody evaluation because a psychologist could interview your child and provide that information to the court.