Children as Custody Decisionmakers As King Solomon understood, custody litigation is no easy task. Contemporary courts don’t have it much easier.

BY PROFESSOR CYNTHIA LEE STARNES, JD, LLM Directed by statute to determine custody according to a child’s “best interests,” courts must often choose between two fit and caring parents whom the judge hardly knows. The movement toward shared parenting rarely obviates the need for a custody choice since pragmatism usually requires that one parent serve as primary physical custodian. In an effort to facilitate custody decision making, courts and legislators have increasingly begun to rely on the child’s custodial preference as a proxy for her best interests. Such a preference, say advocates, is a reasonable custody determinant since the parent the child prefers is likely to be the parent who has more closely bonded with the child, often because that parent is the more experienced and therefore the more adept caretaker. Deferring to the strongly held and reasonable preference of a mature child is surely an appropriate judicial response, driven both by respect for the child and by the reality that a custody arrangement such a child opposes is not likely to be successful. Not all preference cases, however, are so straightforward. In fact, cases involving mature children with strongly held preferences are not likely to be litigated in the first place. More commonly in litigated cases, a child’s preference will be less certain, her maturity less clear and the basis of her preference less readily identifiable. In these cases, legal actors generally agree that the child’s best interests do not support placing her on the witness stand and cross examining her in order to identify preference and assess maturity. A much better option, say many states, is to authorize judges to interview children in chambers, far from the adversarial atmosphere of the courtroom and the interference of anxious parents. Secure in the presence of an understanding judge, the child will feel free to tell the truth about her parental preference, and the judge, better informed by the child’s conversation, will make a wiser best-interests decision. At least that’s the way the story goes. Unfortunately, the reality of a preference interview may be very different as a judge, unschooled in child interview technique, poses a series of forced-choice questions, misinterpreting the child’s responses, unintentionally leading the child to confirm the judge’s own bias, and misjudging both the child’s maturity and the basis of her preference in an interview that averages less than 20 minutes. While delegating the preference interview to a third party may improve the quality of the interview, delegation adds expense to an already expensive process, triggers troublesome evidentiary issues, and leaves judges with second-hand information and no opportunity for interactive dialogue. Even best-scenario preference interviews are not cost free for the child, for the privacy of the judge’s chambers cannot fully protect children from the stress posed by the preference question itself. For the child asked to express a custodial preference, there is no win-win response: choose mom and betray dad; choose dad and betray mom. Indirect questioning may reduce, but not eliminate, this untenable situation for the child, who will understand that her conversation with the judge may jeopardize one parent’s custody claim. Children who decline to express a preference do not fully avoid the pain of the preference question, but rather may experience a sense of disempowerment for their failure to accept the judge’s invitation of control. Parents may also pressure children to reveal their in-camera statements, especially parents who coached their children prior to the interview and who subsequently blame the child for their loss of custody. Such children may feel the disappointment, hurt or wrath of the losing parent. While most preference interviews are surely not worst-case scenarios, there are many opportunities for a judge to gain a false sense of the child’s best interests during the interview. The child’s preference, for example, may be inconsistent, depending more on the day of the week than on firmly held, rational reasoning, a possibility not easily tested without the kind of longitudinal observation not possible in a single, brief interview. In some cases, the child’s preference may be the product of parental manipulation, conscious or otherwise. Children may fall victim to the “lollipop syndrome,” preferring the parent who showers them with goodies; the “rescue syndrome,” preferring the parent perceived as most needy; or the “reconciliation syndrome,” preferring the parent who does not want a divorce in the hope of inspiring the nonpreferred parent to abandon the divorce. In none of these cases is a child’s stated “preference” a true proxy for her best interests. Excluding parents from the preference interview exacerbates the risks of erroneous decisionmaking, as it insulates the child’s in-camera statements from the best-positioned accuracy testers. Moreover, parents have a legitimate due process complaint that their exclusion from the in-camera interview denies them fundamental fairness in litigation involving their constitutional right to the companionship, care, custody and management of their children. As the Michigan Supreme Court recently acknowledged,1 there is no easy answer to parental demands for access to preference interviews. While such access might decrease the opportunity for a court to rely on misinformation, it might also deprive the child of a protected environment in which to speak, undercutting the very purpose of the in-camera interview and effectively denying children a voice in their custody. The American Law Institute offers a partial escape from this conundrum. In its recently promulgated Principles of the Law of Family Dissolution, the Institute refines the best-interests custody model, proposing that custody at divorce approximate the extent of child care prior to divorce. Under this “approximation model,” a mother, for example, who assumed the role of primary caretaker during marriage would be presumptively entitled to continue as primary caretaker after divorce. At least in cases of easily established caretaking patterns, the ALI’s proposed model injects determinacy into the nebulous best-interests standard, thereby reducing the temptation to rely inappropriately on the child’s supposed preference as a proxy for her best interests in difficult cases. The child’s custodial preference retains a role under the ALI proposal, however, rebutting the approximation presumption when it conflicts with the strongly held, reasonable preference of a mature child. The sixteen-year-old, for example, who strongly preferred her father would not be required to live with her primary caretaker mother. While the ALI also suggests continued reliance on the child’s preference in cases of less public, less strongly held preferences of less mature children, this continuation of current law seems unnecessary and unwise. The ALI’s approximation model offers an opportunity to rethink the practice of delegating responsibility for custody decisionmaking to children who do not seek it. Clearly, deference should be afforded the openly expressed, strongly held preference of a mature child. Just as clearly, children whose custody is at issue should be given an opportunity to speak, and to speak broadly to any issue that concerns them. Simply put, “Is there anything you think I should know?” is a better question than “Who do you love most?” Judges who invite a child’s free narrative, even in a brief interview, may gain significant information that would have remained undisclosed had the interview been confined to the child’s preference and maturity. Any relevant information a child provides should be made available for parental response and, when appropriate, should rebut the approximation presumption. Although allowing parents access to the child’s statements will not be cost free for the child, fundamental fairness favors such access and the use of free narrative rather than preference-driven questioning may reduce these costs for the child. While the ALI approximation model would not make custody decisionmaking an easy judicial task, it would greatly facilitate that process and obviate the need to delegate the custody decision to children who may be less than eager and less than able to undertake it. Cynthia Lee Starnes is a professor of law at Michigan State University-DCL College of Law. She holds a JD from Indiana University Indianapolis School of Law and an LLM from Columbia University School of Law. Professor Starnes’s scholarship has appeared in leading journals, including the University of Chicago Law Review and the Wisconsin Law Review. Her critique of family law and her proposals for reform have provoked widespread national commentary. Professor Starnes has presented her work at numerous conferences. She has taught commercial law at the National Judicial College and at the University of Michigan Law School. Professor Starnes is chair of MSU-DCL’s Child and Family Advocacy Certificate Program. She teaches commercial transactions and family law. 1 See Molloy v. Molloy, 643 N.W.2d 574 (2002). See also Molloy v. Molloy, 637 N.W. 2d 803 (2001).