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How to Hurt and Help Yourself in a Custody Case

April 19, 2013

For a parent or guardian, one of the worst situations imaginable is to be involved in a contested custody case regarding your child. Unfortunately, for many families, going to court for custody is unavoidable. If that happens, the first issue for many parents and guardians is what, if anything, to say to the child about the case. Here are some suggestions to keep in mind.

Don’t discuss the case with the child.

This is perhaps the easiest rule to understand and the most difficult to keep. There are many situations that require you or another family member discuss custody with a child. Most often, one parent will become aware that the other parent (or family member) has been speaking to their child or children; asking them who he or she want to live with, questioning them about things happening in the other parent’s household, telling them that they will have to speak to a judge, or, in the more extreme cases, promising them something if they will say they want to live with that person.

The natural response is to counteract what the other person has said to the child, to explain “your” position to the child. This is wrong for a couple of reasons. First, and most importantly, is the effect that these conversations have on the child. This must be your priority, and not “setting the record straight.” The second reason to not discuss the trial with a child is the impression this behavior will have on the court. Custody judges are very experienced, and most can tell right away if a child has been coached in any way. If both parties are discussing the case with the child, the court will form a negative impression of both sides. However, if you go into a hearing with “clean hands,” you will be a step ahead with the court.

If you discover that the other side is speaking with the child about the custody case, the best response should be kept general.

Don’t tell the child that the other parent is bad to speak to them. Better to say something like, “I’m sorry Mom/Dad/Grandmom spoke to you about this. You don’t need to worry about this. This is grown-up stuff.” If the child persists, or asks you whether or not he/she will have to speak to the judge, or seems to be nervous or worried about what will happen in court the best answer is a general one. “I don’t know. The judge is going to help the grown-ups figure all this out. They may want to meet you to say hello because they’ve heard so much about you.”

If the child asks what they should say to the judge, the best answer is to tell the child to tell the truth. These days, judges rarely ask a child directly who they want to live with. Instead, the judge may ask the child if anyone has talked to them about coming to court, or whether or not either party has told the child what to say to the judge. The only thing you want the child to say to the judge about you is, “My Mom/Dad told me to tell you the truth.”

Remember that a child hears and understands a statement differently than an adult.

Children are very literal in answering questions. For example, if you are represented by an attorney in your custody case, the attorney will meet the child, at the very least on the day of the hearing. The attorney may simply say “hello” to the child. When the child speaks to the judge, the judge may ask him or her if either of the attorneys has spoken to them. The judge means to ask whether either attorney has discussed the case with the child, but this is not what the child hears. The literal answer is “yes”, the attorney has spoken with the child. And, again, this creates a negative impression with the court.

In dealing with children and custody matters, parents and guardians also must be careful not to speak to other adults about the case in the presence of the child. Just because you do not speak directly to the child does not mean that the child is not listening to your conversation. Remember again that children interpret things differently than adults. A child may repeat what they think they heard, and this may not be accurate.

The first concern of every adult in a custody matter should be the best interests of the child. Parties in a custody case need to remember that this standard applies in their everyday interactions with the child and not just in the courtroom.

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