Fall 2013: Navigating the Minefield of Rules and Emotion When Providing Children With A Voice In Custody Disputes

By Wendy O. Hickey, Esq.

            Few topics evoke the emotional reaction elicited by the question:  Should a child be permitted to testify in a custody dispute?  After all, other, far less controversial, methods of taking the child’s perspective into consideration are available.  For example, the court can appoint a Guardian Ad Litem (“GAL”) to perform an investigation on the issue of custody.  Alternatively, some judges appoint counsel for the child(ren) in custody disputes.  Nevertheless, in some instances, the court does choose to hear directly from a child, often over the objection of one of the parents. 

            The statutes and some case law referencing children’s rights in custody disputes are typically general, giving rise to further litigation.  This article will review statutory and select case law which address when and how children are entitled to a voice in custody matters and discuss some of the practical hurdles one faces in such litigation.

            Although the focus of this article is on children of married parents, it is noteworthy that children born out of wedlock have statutory rights not accorded children born of married parents.  Despite efforts to ensure that children born in or out of wedlock are entitled to equal rights and protections under the law, this is one instance where their rights are inconsistent.  Children born out of wedlock who attain age fourteen, “shall be made a party” in an action involving custody or visitation of that child.  M.G.L. 209C, §5(e). 

            The rights of children born of married parents are far less specific.  “In making an order or judgment relative to the custody of children, the rights of the parents shall, in the absence of misconduct, be held to be equal, and the happiness and welfare of the children shall determine their custody.  When considering the happiness and welfare of the child, the court shall consider whether or not the child’s present or past living conditions adversely affect his physical, mental, moral or emotional health.”  M.G.L. 208, §31.  Equal protection ought to work both ways.  Arguably if a child born out of wedlock becomes party at age fourteen, a fourteen year old child of divorcing parents should get to testify.   At the very least, based on the age and maturity level of the child, s/he should have the right to relay facts in some fashion which would help a judge decide his/her level of happiness and whether or not anything in their “present or past living conditions adversely affect [the child’s] physical, mental, moral or emotional health.”

            Practically speaking, when a custody dispute arises in a domestic relations matter, a judge typically appoints a GAL to “investigate the facts of any proceeding pending in said court relating to or involving questions as to the care, custody or maintenance of minor children …”  M.G.L. 215, §56A.  Two distinct types of GAL appointments exist in a custody dispute – a Category E (Evaluator) GAL and a Category F (Investigator) GAL.  The primary difference is the education and training of the GAL.  An evaluator is a mental health professional.  An investigator can be either a mental health professional or an attorney. 

            While the court order appointing the GAL dictates the specific topics for the investigation, there are Standards for GAL investigations, see Probate and Family Court (“PFC”) Standing Orders 1-05 and 1-08.  The goal of a GAL investigation is to provide the judge with information which will assist in determining custody.  In doing so, the GAL typically interviews the parties, reviews relevant documents, speaks with collaterals, meets with the children individually and often in the presence of each parent in their respective home.  “The GAL is specifically not an attorney or advocate for the child.”  PFC Standing Orders 1-05C and 1-08C.  So, while the GAL may meet with the children, they do not necessarily provide a vehicle for the child’s voice being heard.  “In some cases, the child’s wishes may be contrary to the child’s best interests.”  PFC Standing Orders 1-05C and 1-08C.  In any event, the GAL standards do not dictate the age when, if ever, the GAL may emphasize a child’s preference in their report or recommendations. 

Another available option is for a judge to appoint an attorney for the child.  Although there are no specific guidelines for such an appointment, experience suggests judges only do so when the dispute involves teenage children.  The standards for representing children are governed by the Massachusetts Rules of Professional Conduct Rule 1.14 – Client With Diminished Capacity.  By appointing counsel for a child instead of a GAL, the court is giving the child more of a forum to be heard.  The child’s counsel will attend motion hearings, be a part of settlement negotiations and, if need be, appear at trial – offer evidence[1] and examine witnesses.

The appointment of an attorney for a child does not come without potential pitfalls.  An attorney representing a child must report that child’s wishes as of their eighth birthday.  Should we really be permitting an eight year old to have this much say in a custody case?  If a child is seven or younger, the lawyer may substitute judgment for the child thus creating a different problem - what happens when there are multiple children in a family – some of whom are teenagers but the youngest is seven?  Should there be separate lawyers for each child?  Or, what if there are multiple children of similar ages who want vastly different outcomes?  Do they need separate counsel?  How much of the parents’ resources can reasonably be expected to go toward funding this custody dispute?  Or, if pro bono services are being utilized, how much of these precious resources ought one family be permitted to monopolize?  Finally, does the attorney for the child have the ability to disclose any confidential information when the child does not have the capacity to consent?

Of course, instead of a GAL or attorney for the child, the judge can decide to hear directly from the child.  M.G.L. chapter 208, §32 provides for the issuance of a writ of habeas corpus to bring a child before the court in actions for divorce, separate support, or any other proceeding in which the care and custody of a child is in question. 

On the rare occasion when a judge does decide to hear directly from a child, it is up to the judge to set the parameters.  For example, the interview can take place in camera, albeit on the record, either in the presence of a stenographer or using the courthouse recording equipment.  Abbott v. Virusso, 68 Mass. App. Ct. 326, 335 (2007). 

The Massachusetts appellate courts have “not addressed any of the current research as to the circumstances which contribute to or detract from the reliability of children’s statements made during in camera interviews conducted by a judge.”  Id. at 337.    Before holding an in camera interview with a child, the judge also needs to decide who will be present during the interview and whether counsel will be permitted to ask questions of the child either by written submission or direct question. 

The judge could also opt for a hybrid approach.  In 1995, a trial judge interviewed eleven year old identical twins in chambers to discuss their living arrangement preferences.  Immediately following, the judge held an informal motion hearing on the record where one of the twins stated she wanted to try living with her mother while the other stated she wanted to continue to live with her father.  Ardizoni v. Raymond, 40 Mass. App. Ct. 734 (1996). 

The judge issued a temporary order separating the children based on their stated wishes.  At the subsequent trial, the judge heard from various witnesses including a GAL, therapists, and the parties.  He also spoke in chambers (on the record) again with one of the twins about her preferences.  Despite their expressed desire to be reunited, both children expressed a desire to live with the other parent.  The judge then issued a judgment keeping the children in separate households.  On appeal, the father argued the judge had placed too much emphasis on the children’s stated preferences.  The appeals court agreed.  “[The judge’s] articulated reasoning manifests an excessive reliance upon the preferences of two eleven year old children as to which parent each would like to live with.”  Id. at 741.  The matter was remanded to the trial court for further consideration including more detailed findings as to the best interests of the children.  “Discretion allows the judge, when determining the best interests of children, to consider the widest range of permissible evidence, including the reports and testimony of a court appointed investigator or GAL, … and the judge’s own impressions upon interviewing the child privately in chambers.”  Id. at 738.  There is a presumption in a custody case of keeping siblings under one roof.  Bezio v. Patenaude, 381 Mass. 563 (1980).  The appeals court noted in this particular case, given all the children had been through, perhaps placement together in the care of a third party was an option.  Ardizoni supra at 741.

At the risk of implying that Ardizoni sets a bright line rule that eleven is too young for a child’s request to be given significant weight, in 1945 a judge permitted the testimony of two children ages seven and eight in an action to modify custody and found in favor of their stated preferences.  While it is not clear from the appellate record what other evidence the judge considered in entering his judgment, he was not criticized for hearing from or considering the preferences of these two young children.  The SJC held “the [trial] judge could find from the testimony, including that of the children, that they preferred to continue to live with the respondent...”  Grandell v. Short, 317 Mass. 605 (1945).  

On the other hand, in 1983 the Appeals Court sustained the probate court judge’s decision “declining to have a conference in camera with the son of the parties, then twelve years old, because the judge … thought the son ’was in the recent past not in a neutral environment and [was] under …[his] father’s influence and pressure.’”  Hayden v. Hayden, 15 Mass. App. Ct. 915, 916 (1983).

When removal of the child(ren) from the commonwealth is part of the custodial dispute, some children can object.  M.G.L. chapter 208, §30 provides “A minor child of divorced parents who is a native of or has resided five years within this commonwealth and over whose custody and maintenance a probate court has jurisdiction shall not, if of suitable age to signify his consent, be removed out of this commonwealth without such consent …”  “Suitable age” is not defined. 

In 1981 three siblings were allowed to testify in a removal case.  Hale v. Hale, 12 Mass. App. Ct. 812 (1981).  The oldest sister, then over eighteen and living with the father, testified she wanted her sisters to stay nearby.  The thirteen year old sister testified she wanted to stay in Massachusetts close to her friends and family.  The nine year old sister testified it would be better to stay in Massachusetts close to the oldest sister and father.  Id at 814.  Based in part on the testimony of the children, the judge denied the mother’s request for removal.  The Appeals Court reversed the decision and remanded the case to the trial court for further proceedings.  In doing so, the Appeals Court noted “Although the children said they preferred to remain in Massachusetts, the preferences of children of these ages must be treated with caution.”  Id at 820. 

Two and a half decades later, the result was the same.  In Abbott v. Virusso, 68 Mass. App. Ct. 326 (2007), the trial judge held an unrecorded, in camera interview with the eleven year old child and denied the mother’s petition for removal.  In doing so, he found that the child would not benefit from such a move and does not want to be separated from his father, sister and friends.  Id at 332.  This judge made specific findings that the child was “happy, intelligent and well-adjusted [and] wish[ed] to continue to reside in the Newton area”.  Id at 333.  The judgment was vacated and remanded to the trial court for further hearings.  Although the appeals court did not specifically say the judge could not consider the evidence gleaned from interviewing the child, the opinion made clear the judge ought to be specific in his findings that his conclusions were based on more than the child’s own stated preferences.  Id at 339.

When it comes to removal, the Hague Convention on Civil Aspects of International Child Abduction may come into play.  Although it is a jurisdiction treaty, it gives children an opportunity to express their preference in relation to custody.  Article 13 of the convention provides in relevant part “[t]he judicial or administrative authority may also refuse to order the return of the child [to his habitual residence] if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”  Of course this is yet another forum where children are given a right to be heard based on an age and degree of maturity, neither of which is specifically defined.  Instead, it is up to the judge to make that determination on a case by case basis.  That being said, the Hague Convention specifically does not apply to children age 16 and over thus sending a clear signal that the real issue lies with children under age 16.

“No part of the Hague Convention requires a court to allow the child to testify or to credit the child’s views, so the decision rests within the sound discretion of the trial court.  The district court did not abuse its discretion by refusing to allow J.K. [age nine] to testify.”  Kufner v. Kufner, 519 F.3d 33, 40 (1st Cir. 2008).  In this particular case, J.K. and his younger brother M.K., age eight, had been through repeated interviews both in Germany and Rhode Island by various agencies and mental health providers.  Rather than interview them again, the district court assumed that, if asked, J.K. and M.K. would express a desire to remain in Rhode Island with Mother.  The judge noted that when the children were in Germany before the wrongful removal, they expressed a desire to remain in Germany.  Ultimately, “the district court properly gave little weight to the children’s wishes “because of their young ages, lack of maturity and susceptibility to parental influence.”  Id.

In sum, the child’s right to be heard in a custody case will continue to be addressed on a case by case basis.  Putting a child through the burden and responsibility of trial testimony, even in camera, and permitting them to choose between parents feels wrong.  Our system is by no means perfect, but until our judges are trained mental health professionals, this is not an area ripe for change.

Wendy is a graduate of Suffolk University School of Law (2003 cum laude), Suffolk University (1998 cum laude) and Fisher College (1994).  She has been working at Nissenbaum Law Offices since 1994 first as a paralegal and, since 2003, as an associate handling all aspects of family law cases. Wendy is admitted to practice in Massachusetts (2003), the U.S. District Court (Massachusetts 2004), the U.S. Court of Appeals (1st Circuit 2007), and the U.S. Supreme Court (2011).

Wendy co-authored an article What You Need To Know About Vaughan Affidavits” which was published in Massachusetts Lawyers Weekly, October 27, 2006 and regularly writes on various family law topics for the Boston Bar Association Family Law Section Newsletter.   

Wendy was named a Rising Star by Boston Magazine’s publication of Super Lawyers in 2011.


[1] There do not appear to be any reported cases in Massachusetts where an attorney for a child in a domestic relations custody dispute put their client on the witness stand.