August 22, 2024 by Stephen Vincent

How do I get my child’s voice heard in a custody proceeding?

When facing a custody issue where your child is expressing concerns of mistreatment by the other parent, your sole goal becomes protecting your child. Many parents reach out to our team seeking guidance on how to make sure their child’s concerns are communicated, or how to allow their child to speak directly to the judge about the living conditions at the other parent’s home. We often get the question of, “how do I get my child’s voice heard in a custody proceeding?”

First, parents asking this question need to understand, your child is not going to testify at a or other court hearing. It’s not going to happen.

Occasionally, someone who has done their research will push back on this point and they will say to me, “Rule 12 allows it.” It does not. Rule 12 permits “an interview;” it does not permit trial . We’ll discuss the in camera option below.

The court strongly discourages child witnesses. Even suggesting to a judge that you want a child to testify might not be well received—and bringing up the idea could harm your case. Judges generally like to keep children out of the fray; two, a child testifying in court for one parent and against the other is generally viewed as being unhealthy for the child’s long-term relationship with both parents; three, the child’s usually holds little, if any, sway in the matter; and, four, there are other ways to get this information.

It is on this fourth point that we focus this article—because it is through these ways that your child’s voice may be heard. But remember, the opinion of a younger child, particularly one who is still in elementary school, is unlikely to be considered. A.R.S. § 25-403(4) requires a court to only consider the wishes of a child who “is of suitable age and maturity.” For that reason, it tends to be teenagers who get a say in what happens to them, and even then, it is just one factor among the 11 .

The best option is to have your child interviewed by either someone at , or, even better, a Court-Appointed Advisor.

In camera interview with conciliation services.

Above, we referenced that Rule 12 permits child interviews. Specifically, it permits that “the court may conduct an in camera interview with a who is the subject of a or dispute to ascertain the child’s preferences as to both.”

In camera means “in chambers” or outside the presence of the parties; i.e., the interview will be conducted at the courthouse but not in the courtroom itself and neither parent will be present. And if you read further, the definition of the Court here includes Conciliation Services, a of the court used to perform non-judicial functions. In other words, it will likely not be your judge who interviews the child; it will just be someone from the Court taking the interview.

They will record the interview with the child, which will be available to the Court and, generally, but not always, to the parties. This does not mean that the interview has been admitted into evidence. If you wish to use it at , you will have to ask the judge, at trial, to admit the interview into evidence.

An Interview with a Court-Appointed advisor

A Court-Appointed Advisor, or CAA, is someone who investigates the custody aspect of a case for the Court. See ARFLP Rule 10.1. Generally, they will speak to both parties, and, if appropriate, the child(ren) involved in the case. They will review records and exhibits the parties provide to them.

They will then submit a report to the Court, summarizing the interviews and records, and they will then make recommendations to the Court regarding legal decision-making and parenting time.

It is a much more thorough and detailed process that explained above. They are doing more than just summarizing what the child says; they can make recommendations to the Court based off that child interview. Their reports are quite influential with the Court. Oten times, the Court adopts the recommendations of the CAA, so providing them with the information they need to formulate their report is critical.

Other options

Sometimes, a child’s voice might be heard by having their therapist records come into evidence. However, if the child is using a safe-harbor therapist, that may not be possible. If the child’s mental health and well-being are part of litigation, it’s recommended you choose a forensically informed counselor or therapist.

On rare instances, a child may be represented by individual counsel, such as a Best Interest Attorney (aka BIA) or . A BIA is required to take the position that the BIA determines serves the child’s best interests (hence, the name). The BIA is not required to advocate for what the child wants.