Should Children Have a Say in Custody and Visitation Schedules?


When parents separate, one of the first tasks is to decide on a custody and coparenting plan, with a weekly or monthly visitation schedule for when the children will spend time with each parent. It has become more and more common for parents to want an equal, or reasonably equal, division of time with their children, and I have many clients whose children switch between their parents’ homes during the week, each week. Children have feelings about their schedules, of course. How much of a say should they have in when they go where? What makes this so difficult to answer is that it does not take place in a vacuum—they are adjusting to the loss of an intact family, they may have to leave what has been their home, they often have feelings about which parent is responsible for the divorce, and they may prefer Mom or Dad’s parenting style over the other’s. In rare cases, children allege that one parent has been abusive, or even sexually abusive.

Does the court consider what the child wants?

Some parents are open and receptive to their children’s viewpoints about scheduling time with each parent, and want to consider the children’s wishes. Others believe that children’s viewpoints should not govern or shape the custody arrangement. The court takes various factors into consideration when weighing a child’s wishes regarding custody and visitation schedules. One factor is the age of the child: In a recent case decided by the New York State appellate court, a father was allowed to relocate to Las Vegas with his children, ages 14 and 16, against the wishes of the mother, who lives in New York. The court cited the wishes of the children as one of the reasons for its decision.

Bias caused by parents

But when the court considers a child’s wishes regarding custody and visitation, it also considers whether the child has been influenced or pressured into his or her opinion by the favored parent. In custody cases, one parent often believes his or her children’s stated views are influenced by the other parent’s bias, but it is hard to prove. This is called parental alienation: when one parent denigrates the other, perhaps informing the children of inappropriate details about finances or adultery so they take the alienating parent’s side. It may be hard to determine when a parent’s influence has turned a child against the other parent, because one of the hallmarks of parental alienation is that the child insists the views are his or her own. In cases of severe parental alienation, the child internalizes the alienating parent’s anger and believes he or she has come to those views independently.

Forensic evaluation

When parents seek court intervention to resolve custody and coparenting, the judge may appoint an Attorney for the Child (or Children), who will advocate for the children’s wishes regarding custody. The judge may also appoint a forensic (psychologist or psychiatrist) to evaluate every family member—parents and children. The forensic will explore with the parents and the children the circumstances underlying a child’s preferences. Parental alienation is a significant factor in custody awards. If the forensic determines that those preferences are the result of parental alienation, the court usually will not honor the child’s wishes in a custody order.

What should a parent do when a child expresses his or her feeling about the separation or divorce, or about some aspect of custody, visitation schedule and parental decisions being made regarding the child’s life?

Here are some suggestions:

  1. If possible, when you and your spouse decide to separate or divorce, sit and talk to your children together to explain what is going to happen (“Dad or Mom will be moving into another home…”).  Be sure to state that both of you love him/her and there is nothing the child did to cause the separation or divorce. Also, be sure to state that both Mom and Dad want to be part of the child’s life going forward.
  2. If possible, tell the child that you and the other parent will talk together about his or her complaint or opinion (and follow up by talking about it with the other parent, and getting back to the child).
  3. If the child expresses feelings of anger or alienation toward one or both parents, tell the child that both parents love him/her and want to look out for his/her best interests. This often comes up when one parent is a disciplinarian and the other a spoiler.
  4. If the child openly advocates to live with one parent, while it may be tempting to support the child’s position to keep him or her happy, it is important for parents to set the basic framework for custody scheduling. Allowing a child to decide whether his/her residence is with Mom or Dad is fraught with perils: the popularity test is not a sound basis for parent-child relationships. The parent who is “on the outs” should examine the child’s complaint and consider changes in behavior and scheduling to make the child feel loved by both parents. Family therapy may be an important tool to work through the problem or complaint expressed by the child.

Copyright 2017 by Mary F. Kelly, Esq.

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