Verified by 
Key points
- Judges should gain experience in interviewing children before doing so in custody cases.
- Initial questions should aim to make the child comfortable and allow the judge to see what kind of person the child is.
- Questions asked of the child about parents should be open-ended and get at the child's view of the parents' parenting style.
- Judges should look for the child's viewpoints of parents' patterns of physical and emotional nurturing as well as failure to nurture.
Often judges are in a conundrum when interviewing children of divorcing parents. They seek the children’s viewpoints but often lack psychologically-aware interviewing skills. They may think they are either the world’s best or worst judge when it comes to dialoguing with children about the care their parents provide.
Birnbaum and Bala point out that judges should have well-versed experience with interviewing children before undertaking talking with them in custody cases. This is because children can be both candid and unpredictable during the interview process.
Most judges do in-camera interviews in their chambers with only the court reporter and the guardian ad litem for the child. The psychiatrist Richard Gardner, M.D., in his 1987 article, “Judges Interviewing Children in Custody/Visitation Litigation,” suggests asking questions of the child that begin with what, where, who and how. Since children do not have an accurate sense of time until around age eleven, when questions should be avoided.
When Should Judges Talk with Children?
The best time for judges to interview children is after they have had ample time to live alone with each separated parent. During a marriage, children often have trouble distinguishing parents as separate people. I call this seeing parents as the “parent blob.” They have difficulty discriminating what role each individual parent plays in their family. Clothes get washed. Dinner is cooked. Homework gets done. Children get to and from school. Children are unsure of which parent does what.
After the parents’ separation and visiting mom and dad in two different households, children can make better observations and see distinct differences in their parents' functioning and care of them. These observations better help judges decide custody and visitation arrangements.
Opening Questions/Dialogue to Put Child at Ease
A judge might offer up, “I want to get to know you and your family. This will help me in deciding what’s best for you.”
Judges should take time to get to know each child as a person. Asking what he/she enjoys doing, what they are good at, and what kind of girl or boy they are allows the judge to become acquainted. This makes the child comfortable and is non-threatening.
It is reasonable for a judge to ask, “What has your parents’ divorce been like for you?” This shows attunement to the child’s viewpoint and empathy for his or her emotional reactions.
Saying that you know the child loves both parents and that this will not be questioned during your discussion removes the dreaded decision by the child of saying which parent he or she wants to live with. Karen J. Saywitz, Ph.D., et al. spell out the core principles in how to conduct the interview. Kuehnle, Greenberg, and Gottlieb also discuss best practices for interviewing children during custody determinations.
Questioning Children About Parenting Styles
Once the child is comfortable and the judge has acquainted himself or herself with an idea of what the child is like and how he/she expresses viewpoints, the judge can move on to getting to know the parents through the child’s observations and experiences. The following questions may help do this.
- What is your mother like?
- What is your father like?
- What is mom good at as a parent? Ask for an example.
- What is dad good at as a parent? Ask for an example.
- What is mom not so good at as a parent? Ask for an example.
- What is dad not so good at as a parent? Ask for an example.
- What is your favorite way to spend time with mom?
- What is your favorite way to spend time with dad?
- What does mom do when you’ve done something wrong? Can you give me an example?
- What does dad do when you’ve done something wrong? Can you give me an example?
- How is mom about getting you to places on time—school, sports, practices/lessons?
- How is dad about getting you to places on time—school, sports practices/lessons?
- How is mom about helping you with school work?
- How is dad about helping you with school work?
- Who is bossier, mom or dad? Ask for an example.
- Who gives you the most help—with bathing, with homework, with talking things over, with solving problems?
- Most children have to give more care to one parent than the other. Who do you have to take care of the most? What do you do for them?
-
Source: Tumisu/Pixabay
How to Evaluate the Child’s Responses
By asking questions of the child, the judge seeks to get a picture of how the child views each parent and relates with them as individual people. Look for patterns of which parent nurtures emotionally and provides psychological care and support.
Look also for patterns of which parent requires emotional care from the child. Look also for who does and does not have daily psychological attunement to the child. The child may see one parent as harsher or as the firm parent who demonstrates little responsibility for and to the child’s needs for eating right, observing bedtime, bathing, getting homework done, and getting places on time.
Judges need to be aware that parents who divorce do so because they cannot get along. They have a track record of not communicating well with one another. Often, they are diametrically opposite in personality styles.
Care-giving Parents
When making custody and visitation decisions, judges should look for the parent with the most care-giving personality to be the custodial parent. This is the parent who most empathically steps into the child’s shoes and tries to evaluate situations from the child’s vantage point. This is also the parent who disciplines firmly yet appropriately and who helps and does not hinder with emotional and psychological struggles the child faces. This is not the parent who leans emotionally on the child or who automatically expects compliance from the child.
Mahrer, et al., conducted a review of 11 studies about custody and children’s emotional well-being after divorce. They found that the parent who provides the most “high-quality parenting” should have the most time with the child because it benefits the child.
Giving custody to the parent with the care-giving personality until the child’s age of majority aids the child in growing up with self-confidence, structure, and both psychological and physical needs being met. Sandler et al. say this is especially the case in high-conflict divorce cases where the relationship with the other parent is less salutary for the child.
Both men and women can be either type of parent. The better parent to be custodian may not be the one who has stayed home with the child. The more nurturing parent may be the one with the full-time job away from home.
Care-Consuming Parents
Less-nurturing parents—those with a penchant for getting children to take care of their emotional needs––should be given frequent visitation until the child is majority age. They need to commit to their parental relationship, even if non-custodial. This is paramount for the child to see realistically what this parent is like through recurring contact.
Children who lose contact with a parent idealize the absent parent and also grieve the loss of the parent. Often, they assume they have done something wrong to merit the parent’s abandonment. This is especially important in high-conflict divorces where the parent who does not have custody may retreat from the child in anger or rage to punish the child or ex-spouse because the parent has not obtained the custody arrangement he or she sought.
References
Richard A. Gardner, MD, "Judges Interviewing Children in Custody/Visitation Litigation," New Jersey Family Lawyer, VII (2), August-September, 1987, p.26ff.
Homer B. Martin, MD & Christine B.L. Adams, MD, Living on Automatic: How Emotional Conditioning Shapes Our Lives and Relationships, Praeger, Santa Barbara, CA, 2018.
