Today I am starting a series of posts about child custody matters. Custody matter are among my least favorite domestic relations matters. When custody is litigated, the children always lose. As a parent I find this unfortunate. As a professional, I find this distasteful. However, I do not shy away from custody cases because if handled properly, children can be protected from their parents’ discord.
The Rights of Children
When discussing custody of children, the paramount consideration always should be the child or children. Too often the adults make themselves and their conflict, pride and dysfunction, the main considerations and driving forces in custody cases. This usually results in the child or children suffering. Even good parents sometimes can get sucked into conflict and lose sight of how their conduct, especially litigation, can harm their child or children. This is wrong.
A recent and positive legal trend is the recognition that children have rights in custody matters. These include the right to have the court consider their wishes when making a determination of custody. However, the wishes of a child will not be determinative in custody decisions. After all, the legal standard is the best interests of the child, not the wishes of the child.
Many courts now are incorporating a “Children’s Bill of Rights” to custody orders and divorce judgments. These typically are statements of the obvious, which, too often is overlooked by divorcing parents. These bills of rights are included to remind parents that it is not all about them and that they should never lose sight of the rights of their children.
The following is a typical “Children’s Bill of Rights” used in upstate New York courts.
A Bill of Rights for Children
Children have the right not to be asked to choose sides between their parents.
Children have the right not to be told the details of bitter or nasty proceedings going on between their parents.
Children have the right not to be told bad things about the other parent’s personality or character.
Children have the right to privacy when talking to either parent on the telephone.
Children have the right not to be cross-examined or interrogated by a parent after spending time with the other parent.
Children have the right not to be asked to be a messenger from one parent to the other.
Children have the right not to be asked by one parent to tell the other parent untruths.
Children have the right not to be used as a confidant regarding the legal proceedings between the parents.
Children have the right to express their feelings, whatever those feelings may be.
Children have the right to choose not to express certain feelings.
Children have the right to be protected from parental warfare.
Children have the right not to be made to feel guilty for loving both parents.