by: In a custody dispute, it is very common that a parent will want to make sure that the judge understands the preferences of the minor child. “Sally, my 8 year old daughter wants to live with me and she needs to tell the Judge!” While in certain circumstances a judge may agree to speak to a child, and it may be appropriate, there are other ways to communicate a child’s preference without putting him or her in the middle of a trial.
In Maryland, like in many other states, a court can appoint a Best Interest Attorney, commonly referred to as a “BIA” to represent the child in a custody dispute. The BIA’s job is to help determine what custody and visitation arrangement is in the child’s best interest. The BIA will usually talk to the child and the parents. The BIA may also speak to collateral sources like relatives, teachers, or parents of friends. The BIA can assist in negotiations by presenting his or her opinion and the wishes of the child. If the case goes to trial, the BIA acts on behalf of the child. Although the BIA is the child’s attorney, he or she may not necessarily agree with the child regarding the best custody and visitation arrangement. The BIA may report the child’s desire, but also state his or her opinion regarding what the arrangement should be.
Another way a child may be heard is through his or her therapist. A child, like an adult, has a privileged relationship with a therapist. A therapist can tell a court what the child would like to see happen, only if the therapist is allowed to testify at trial. In order for the therapist to be allowed to testify, the privilege he or she has with the patient must be waived. For the most part, minor children cannot waive their own privilege. To solve that problem, a court can appoint a different type of attorney for a child. This attorney is commonly referred to as a “Privilege Attorney” and it is his or her job to determine whether it is better for the child to maintain the privilege with the therapist, and as a result, keep the discussions with the therapist confidential; or is it better to let the judge and the parents know what the child has said in therapy. If the Privilege Attorney decides to waive the privilege, then the therapist can testify and a child can be heard through that testimony. The same person can act as a BIA and Privilege Attorney.
Finally, a child may be able to speak directly with the judge who is hearing the case. Whether a judge will hear a child depends on a number of factors including the child’s age and maturity level, and whether there is an alternative method to obtain the information, which does not include direct interaction with the child (see above). This conversation usually takes place in the judge’s chambers, without the parents present. The judge will later relay to the parents and the attorneys what the child said in that exchange.
It is important to know that no matter how the judge receives information regarding the child’s preference; it is up to the judge to determine how much weight to give to the child’s stated desire. The judge’s job is to decide, based on all of the evidence presented, what is in the child’s best interest. A child may or may not know what is in her or his own interest.
So, yes, Sally’s opinion may be heard, but she will not likely determine the outcome of the case.
Elyse Strickland is a Principal attorney in the firm’s Washington office. Ms. Strickland has extensive experience in complex civil litigation, including managing all aspects of commercial litigation and family law matters. She can be reached at estrickland@offitkurman.com or 240.507.1770.