Children's wishes and the law

Lawyers often talk about a child's preference as if it is the deciding factor in resolving separation disputes. The law is obliged to take into account the child's best interests when deciding child custody.

By Jill Burrett and Michael Green
: August 14, 2014
Parenting and Step-Families

Lawyers often talk about a child’s preference as if it is the deciding factor in resolving separation disputes. This tends to encourage parents to rely on, and even cultivate children’s opinions that may or may not be independent. In many, if not most, Western countries, the law is obliged to take into account children’s wishes, particularly with older children, and judges do not ordinarily make orders that go against them. But the law usually has in place a system whereby children are assessed by psychologists who can independently interpret their wishes and give them the appropriate weight; this in turn is communicated to the court via an independent legal representative. (However, this only occurs in highly contentious cases; and a court is very unlikely to order a shared parenting agreement in this situation because in a case this factious, there is likely to be a lack of parental cooperation and/or an unwillingness to commit to a parenting plan.) Involving children in counseling and mediation is a relatively new idea, and we don’t know much yet about the relationship between children’s involvement in these processes and long-term outcomes. Our experience tells us and studies in the United States confirm it that children, as well as adults, benefit from programs that help them cope with the changes in their lives due to their parents’ separation. 

The likelihood is that your kids say different things to each of their parents, which may seem contradictory if not interpreted in their context. Of course, saying “I want to spend more time with you, Dad” doesn’t necessarily mean “I want to spend less with Mom.” Saying “I want equal time with each of you” doesn’t mean that’s actually what they want; it’s what they think is fair to their parents, and it will enable them to avoid expressing a preference for one over the other. Your kids shouldn’t have to be worrying about diplomacy and loyalties; they should be kids, having fun, experimenting with life within safe boundaries, free from worries about their parents’ difficulties.

This doesn’t mean you shouldn’t talk to your children and listen to them. It means you should use those times as opportunities to reassure them that you’re interested in what they have to say, that as their parents you are going to take everything into account and sort out what’s going to work.

Shared Parending

This article has been edited and excerpted with permission from Shared Parenting: Raising Your Children Cooperatively After Separation. Copyright © 2009 by Jill Burrett and Michael Green, Celestial Arts, an imprint of Ten Speed Press, a division of the Crown Publishing Group, Berkeley, CA. Click Shared Parenting to get more information about this book.


Other articles from Shared Parenting: Raising Your Children Cooperatively After Separation

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November 17, 2010
Categories:  Children and Divorce