I once found myself spending an unexpected day in court for a custody hearing. The process was at first slow and tedious— the attorneys were sure we could reach an agreement without having to face the judge, and we kept ping-ponging between our clients and each other, swapping offers and rejections. Of course, we could not reach a perfect agreement, and I had to suggest we go before the judge.
My eagerness to avoid the courtroom was not because I feared an outcome left up to a judge. In fact, I really believed it would be better for the judge to hear from my client; I thought our case was strong and the judge would understand our position. But it was not just me and my client in the courthouse that day. My client’s child had come along and was expected to speak to the judge if a hearing occurred.
I had spoken to the child that morning, letting them know that I would be in the room if they spoke to the judge and that they should not be nervous. Despite my assurances, I could tell they were a little frightened— which is really the appropriate feeling! Knowing they would be speaking to a judge, I could understand a young child’s nerves. It was the reason I had tried so hard to avoid that outcome. Nonetheless, my client and I encouraged them to stay calm and be honest.
Interviews between a judge and a minor child are strictly confidential. I, therefore, will not disclose the content of that interview. However, I can share that when the time came for everyone— attorneys, judge, court reporter, and child— to convene, I was very impressed with the child’s behavior. They were calm, well-spoken, and clear about their feelings. The child was so impressive, in fact, that opposing counsel asked to speak to the judge without the child present.
“The child has clearly been coached! Somebody has obviously told the child what to say and how to feel.” Opposing counsel was sincere in his angry frustration. It was unthinkable to him that a child of this age could speak so articulately and reasonably about a complicated situation. At first, I took blind offense: what a crude tactic! It felt as though he was attacking the child. However, as he outlined his complaint, it occurred to me that he did not know the child. He had no information to distinguish this child from any other. With that realization, I turned to the judge myself.
“I know this child well. I did not prepare them, and I know my client did not. This child is extraordinarily intelligent and sensitive. I was not surprised by their responses, and I believe those are the child’s sincere, personal feelings.”
The judge made no indication of his belief in either position— but I was pleased, at the close of the day’s proceedings, to hear him speak highly of the child. I cannot say whether the child’s conversation with the judge influenced his decision. Still, the experience reminded me of an important element of cases like these.
In typical custody cases, it is less likely that you will represent the child than it is that you will represent a parent or guardian. You advocate for that client’s wishes, support their position, and do what you can to achieve their desired outcome. However, custody is also guided above all else by one principle: the best interest of the child (BIOC) standard. Children are, obviously, at the heart of custody, but often, they can be lost in the abstract facts of the case. The time you may get to speak with those children, compared to the time you spend with their caretaker, is remarkably limited.
My experience that day emphasized the crucial significance of learning about that child. I represented their parent and sincerely believed our request was in that child’s best interest, but part of that BIOC standard rested on the child’s conversation with the judge. If I had not known that child’s intelligence and thoughtfulness, the judge might have been unconvinced of the child’s sincerity. My conviction in that child’s ability allowed the judge to see the child more clearly— not only legitimizing the child’s feelings and experience but making my client’s case stronger.
Taking the time to get to know the children in custody cases allows you to set the child at ease when they are made to speak to the court, argue for the child’s ability in conjunction with other arguments in your client’s favor through the BIOC standard, and advocate more competently and sincerely for your client.
