Do children have a voice in the divorce or child custody process?

by Attorney Christopher E. Heberg

It’s an often-heard comment:  It’s the kids who suffer most when their parents separate and divorce.  Although this is undoubtedly true in many cases, in Rhode Island there is a concerted effort to at least ensure that the “voice” of the child is heard and taken into consideration by the parents in resolving their disputes, and by the family courts that hear cases.

The principle behind this is obvious:  Since children are inevitably and profoundly affected by their parents’ settlement agreements and by the court orders that spring from the process, it is only fair that their views and wishes are at least considered before their lives are involuntarily and irrevocably changed. Children can have a significant impact upon which parent has physical custody, where they will be living, and how often they see the non-custodial parent.

But how and when is the voice of the child heard? If parties reach and agreement on their own and reach a mutually beneficial custody arrangement, then there is generally no need to have the child’s opinion considered. However, this unfortunately is not always the case. In these circumstances, the Court is required to insure that child’s voice is heard and incorporated into the parents’ agreement or the court’s order.

The voice of the child may solicited at several different junctures during the litigation and dispute-resolution process. Often this is done by the appointment of a Guardian ad Litem. A Guardian is almost always an attorney that is appointed by the Court, and paid for by the parties, whose sole role is to look out for the best interest of the children. The Guardians obligation is to report back to the Court their interactions with the children and to voice the children’s wishes and their opinion to the parties and ultimately the Court.

Finally, the voice of the child can also be heard and fostered in the traditional way, with the child giving evidence in the courtroom during the trial.   The evidence may be given directly by the child him or herself, or it may be offered through the child’s own Guardian, or through the use of an expert witness who will provide testimony to the court.

Do you have questions about how to have your child’s views heard as part of your family dispute?  We can provide guidance.  Contact us for a free consultation.