Children are limited in their ability to exercise good judgment in complex circumstances because of their immaturity. There are always exceptional individuals or extraordinary circumstances to point to, but most children lack the depth of understanding and life experience necessary to make important life decisions. Choosing which parent they want to live with and scheduling visitation with the alternative residential parent are two decisions that will impact them, well, for life.

Children are ill-suited to elevating one parent over the other with regard to parenting time or, for that matter, whom they want to live with most. These are profoundly difficult issues. Passing the buck and letting the child decide is inconsistent with the Tennessee public policy of doing what is in the child’s best interests. Age and developmental stage also matter, with children under age eight being less capable of decision-making than kids in their late teens. Even teenagers should not be asked to resolve a dilemma that rightfully lies at the feet of their parents.

To be clear, this article assumes we are not discussing a case with domestic violence or mental or emotional abuse allegations.

Leave Children Out of the Conversation

When parties negotiate parenting time schedules with their attorneys’ assistance, they should do so without consulting the child or attempting to solicit the child’s preference. Children should be left out of the conversation. While parents may have good intentions in asking children what they prefer, this will only put the children in the middle. Only rarely, in circumstances where specific cause exists, might exception be made and the child asked how much visitation is desired with the nonresidential parent.

If the child is stable and intelligent, his or her testimony as to preference may be both relevant and highly desirable. However, the child’s expressed desire does not rise to the level of letting that child choose which parent to live with. In an acrimonious custody case, the 13-year-old’s testimony was hindered by the judge’s frequent interruptions, impeding his testimony. In Spruell v. Spruell,[1] the Court of Appeals vacated the trial court’s decision and remanded for a new trial: “While [the child] necessarily cannot be the sole arbiter of his destiny, he is absolutely entitled to express his views in an unimpeded setting.”

John V. Ciocca, Psy.D., a clinical and forensic psychologist in Germantown, Tennessee, notes that in post-divorce matters, children are often told they can choose where they want to live when they turn 12 years of age. This information should never be quoted to a child and distorts the custody factor a court considers under Tenn Code Ann. § 36-6-106(a)(13):

The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children.

Two Tennessee cases illustrate Dr. Ciocca’s point.

In Hardin v. Hardin,[2] the mother was awarded custody of their 13-year-old son despite the child’s stated preference to live with his father. The Court of Appeals found no error in the trial court’s decision not to follow the child’s expressed wishes. A child’s express preference is not, by itself, binding upon the trial court. Instead, it is but one of many factors considered by the court in determining custody.

Several years earlier, the Court of Appeals came to a similar conclusion in a custody modification case. In Harris v. Harris,[3] the appeals court reversed a change of custody from mother to father because the chancellor improperly based its determination solely upon the 13-year-old’s stated preference. All relevant statutory factors should be considered. The child’s preference, although relevant, does not bind the court.

Are the child’s best interests served by asking, “How often do you want to stay with the other parent?” Many mental health professionals think not. An older child, say a 16-year-old, may appear emotionally stable and seem mature enough to help make this decision, yet not be. Appearances do not make it so. The only way to know with certainty that the child’s decision was a good one is retrospectively, long after he or she has grown up and moved on. A catch-22, the same problem applies regardless of the child’s age. In fact, one could argue that an older child is capable of understanding the catch-22 better and, because of that understanding, suffers more in having to choose.

Consider an example. The mother is the primary caregiver of the couple’s only child, age 13. The father files for divorce, seeking nearly equal parenting time. Mom asks the child how often he wants to stay overnight at Dad’s. Because the notion is too strange, the boy answers, “I don’t want to.” What opportunity is there for Dad to maintain or broaden his relationship with his son? Should a soured relationship between parents be allowed to minimize father’s access and weaken bonds going forward? How is that in a child’s best interests?

The challenge of fixing the alternate residential parent’s access time can be heart-wrenching, but divorcing parents must behave like adults and hammer this out like adults. Like it or not, protecting a child from such emotional dilemmas is part of the parenting job. A parent seeking to reduce his or her own emotional distress by leaving decisions up to a child is abdicating parental responsibility. Other parents may feel it is their duty to learn what the child wants then implement that — an egalitarian approach which also skirts parental responsibility. Such abdication of parental responsibility has the potential to be very emotionally damaging to the child, adding injury to an already difficult situation.

Adults know there is no right or wrong answer to the visitation question, but most children do not. Kids generally think in terms of doing right and wrong. Asking this question under these circumstances is asking too much. When parents separate, children frequently struggle with feelings of guilt and self-blame. They take responsibility for parents’ problems, feel disloyal and are critical of themselves for never seeming to get things right.

Divorce is not an experiment in child-rearing under duress. Parents should instruct their child on visitation and immediately provide guidance on how the new parenting time schedule will be made to work well for everyone.

Mental Health Professionals Against Putting Children in the Middle

Many in the mental health community believe divorcing parents should never ask a child how often he or she wants to stay overnight with the other parent. Doing so puts a child squarely in the middle. Regardless of the answer given, the child will feel that he or she must disappoint one or both parents. What follows are several key reasons, from a mental health perspective, why children should be excluded from the process while the adults, and only the adults, schedule the alternate residential parent’s access time.

On resolving conflict between parents, in “Children’s Reactions to Parental Separation and Divorce,” C.M. Lee Ph.D., and K.A. Bax B.A., note how parenting skills are under fire with divorce and how hiding behind weakness is no solution.[4] Here’s an excerpt:

During the divorce process, adults experience a roller coaster of emotions to which their children are extremely sensitive. It is crucial that parents avoid overburdening a child with their own unhappiness or irritability. Furthermore, during the transition period of separation and divorce, the parenting skills of adults are at a low ebb. Unfortunately, at a time when children especially need support, warmth and firm, consistent control, many parents are least equipped to provide it.

Parentification of Children

Parentification describes developmental deficits when parent and child reverse roles — emotionally, functionally, or both. The parent assumes a dependent role while the child (voluntarily or involuntarily) takes on adult roles and responsibilities. Some cases involve child neglect, yet many do not. In all instances, the child’s needs are sacrificed as he or she attempts to satisfy the needs of the parent or family.[5]

Healthy child development occurs when the child forms a secure attachment to the primary caregiver, among other things. Parentification interferes with childhood, a child’s differentiation of self, and the forming of healthy interpersonal relationships with others. Pathology can result when the parent is emotionally unavailable to the child who, correspondingly, feels overburdened with responsibility or feels duty-bound to keep the family on course. Divorce and single-parent households are both known risk factors. Child parentification may result in interpersonal deficits as an adult, but adverse effects may begin early with:

• depression and anxiety;
• headaches and stomachaches;
• aggressiveness and disruptive behavior;
• substance abuse and self harm;
• inability to form peer relationships; and
• academic problems and high absenteeism.

Parentification is not in the child’s best interest. How, then, is asking a child to make an adult decision about visitation beneficial? Set boundaries between childhood and parental roles.

Forensic Child Custody Evaluator’s Role

The question of visitation is one forensic child custody evaluators are trained for. They investigate, interview, document, test, make conclusions and recommendations about parenting time, among other things, and report to the court. The report is not determinative. Instead, the judge weighs the evaluator’s conclusions and recommendations along with other child custody factors.[6]

In “Making Kids Choose Not Wise in Custody Battles,”[7] R.A. Warshak, Ph.D., clinical professor of psychiatry at University of Texas Southwestern Medical Center, Dallas, advises against asking the child what he or she wants:

Children in custody battles pay a price for the privilege of speaking to the judge. It positions them to be lobbied, intimidated, programmed, and coerced by a parent intent on gaining advantage in the litigation regardless of the impact on the child. Children’s stated preferences become up for grabs by whichever parent has the most influence on — and the least compunction about — exploiting them.

…

Children who advocate for one parent against the other, and whose claims at the time of divorce succeed in persuading a court to allow them to reject a parent, suffer in later years. They feel guilty for having turned on a parent. They are angry that they were exploited to advance a vindictive parent’s agenda and manipulated into playing a major role in engineering their own life’s tragedy. They are perplexed that under extreme emotional duress at such a young age, they were vested with the power to make a choice with devastating long-term consequences.

In attempting to elicit the child’s preference regarding what visitation is desirable, indirect inquiry by a child custody evaluator is far more suitable and productive than parents directly posing the question to their child.

A direct question could confuse a young child who might refuse to answer. Whether direct or indirect questioning is used, the child might answer in favor of a parent who just gave a present; or answer against the parent with whom the child is momentarily angry over having to pick up toys in their room. If a sibling expressed a preference for Mom, for instance, the child might choose Dad so he is not lonely or because Dad is most in need. A child might favor the parent who is most feared. In “Can My Child Chose Which Parent to Live With?”[8] S. Tuchman, Psy.D., stated that:

Asking a child to make a decision, even when the child believes they would like to do so, is often detrimental. I have spoken with many adults who, as children, ‘got to choose’ where to live when their parents divorced. In retrospect, they regretted having made a decision that was honored, feeling guilty about the parent they did not choose and feeling the tug of loyalty between the two people who brought them into the world. Anecdotally, this appears to be true whether they had a good relationship with the unchosen parent or not.

…

Some parents try to influence their children to see the situation as they do. This will often be an additional burden on the child who does not want to disappoint this parent or feels inadequate to resist their influence and also wants to maintain his or her relationship with the other parent. What are they supposed to do now? This is one of the most difficult experiences a child can have while already having to face all the changes due to the divorce itself. And, it is the type of behavior that is often seen as alienating by the other parent.

Consider, too, the dynamic between parents. What if one has narcissistic personality disorder and deftly manipulates the child as a plan to retaliate against the other parent? What if parental alienation, intentional or unintentional, is going on with a parent pressuring the child to make a favorable choice? What if a child fears abuse? Or is fearful a parent will be abused should the child answer wrongly?

A related concern raised by Dr. Ciocca is either parent’s inappropriate use of psychotherapy to influence the child and to then document the child’s preference. This subtle form of influence often excludes one parent from the therapy and uses the therapist as an unwitting advocate for a child’s so-called “preference.”

Important questions, including how much time the child wants to spend with the nonresidential parent, should be posed during an interview with a mental health professional trained in forensic child custody evaluations.

The chapter in Psychologist’s Desk Reference (2013) on “Interviewing Children About Sexual Abuse,”[9] by K. J. Saywitz and J. S. Dorado, offers advice to psychologists interviewing a child on the subject of custody arrangements and visitation, whether or not sexual abuse is alleged. To conduct a defensibly forensic interview of a child, the evaluator should be mindful of the following:

• On disclosing details to unfamiliar interviewers: Children typically cope with anxiety-provoking topics by avoidance. One hallmark of PTSD from any cause, not necessarily abuse, is a child’s avoidance of whatever reminds him or her of the traumatic event.
• On suggestibility: As a group, very young children (3 to 4 years old) are most vulnerable to the effects of an interviewer’s suggestive techniques. By age 6 or 7, a child’s resistance to suggestion increases dramatically. By age 10 or 11, the child’s resistance to suggestion again shifts closer to adult levels. Avoid suggesting answers to a child and be objective and neutral on the veracity of allegations. Explore alternative explanations.
• On detecting false allegations: Consistency is used as an indicator of reliability. However, even when a young child’s memories are mostly accurate, frequently there is inconsistency across interviews when different questions are posed by different adults in different settings.
• On language: Much research has gone into asking questions using language a child can understand. The form of the question must match the vocabulary and grammar of the child’s language development. Do not ask questions that require skills the child has not yet mastered. And weigh the child’s answer within a developmental framework.

Framing questions to a child on preferred custody arrangements is neither simple nor without consequences.

The child’s age and developmental stage matter significantly. Elizabeth A. Harris, Ph.D., a licensed clinical psychologist practicing in Memphis, Tennessee, works with children, ages 3 through 11, of divorced families. She believes children in this age group should never be asked to make a determination as to which parent they prefer to live with. “It’s a psychological conflict for them to make a choice,” says Harris, “similar to a parent being asked which of their children they love the most. It results in a loyalties struggle where children can feel as though they are betraying one parent or the other. Children are in the here-and-now and really are incapable of seeing decisions they make with all the ensuing ramifications. In other words, they don’t think like adults.”

Why Children Say They Don’t Want to Leave

Dr. Harris also commented on why children often express a desire to stay with the parent they are currently with. At transition time — when the child gets ready to go from one parent’s house to the other’s — he or she may not want to leave. This is normal and to be expected. The child is balking at the transition, not exhibiting a visitation preference.

Children always express the wish to live with both parents. But parents often misinterpret their child’s behavior as an expression of wanting to live only with that parent. Dr. Harris cautions that when a child says, “I don’t want to go to Mom’s house; I want to stay here with you,” do not take the statement literally. What the child is really expressing is enjoyment of the time spent with the parent he or she is with and reluctance to make the transition from parent to parent again. In general, Dr. Harris has observed that once the handover has been made, everything is fine again.

Logistics as a Practical Matter

With any divorce, there may be exceptional circumstances justifying a parent’s asking the child’s preference. Those exceptions arise mainly when parents live in different cities, when a parent is in the military or deployed overseas, or when other logistical problems prevent flexible parenting. For example, one parent may be “the soccer parent” or an assistant coach for the child’s team. If an out-of-town soccer tournament falls on the other parent’s weekend, with the right tone, it could be appropriate under the circumstances to ask the child about logistics regarding which parent will drive to the tournament and stay at the team’s hotel.

Even then, when seeking the child’s opinion, both parents must be clear that this situation is not the same as letting the child decide.

Notes

1. Spruell v. Spruell, 03A01-9704-CV-00124 (Tenn. Ct. App. 1997).
2. Hardin v. Hardin, 979 S.W.2d 314 (Tenn. Ct. App. 1998).
3. Harris v. Harris, 352 S.W.2d 352 (Tenn. Ct. App. 1992).
4. “Children’s Reactions to Parental Separation and Divorce,” C.M. Lee, Ph.D., and K.A. Bax, B.A., Paediatr Child Health, 2000 May-June, 5(4): 217-218.
5. See “The Developmental Implications of Parentification: Effects on Childhood Attachment,” by J. A. Engelhardt, Dept. of Counseling & Clinical Psychology, Teachers College, Columbia University (2012).
6. See Tenn Code Ann. § 36-6-106.
7. “Making Kids Choose Not Wise in Custody Battles,” by Richard A. Warshak, The San Diego Union-Tribune, April 8, 2016, www.sandiegouniontribune.com, retrieved Aug. 10, 2018.
8. “Can My Child Choose Which Parent to Live With?” by Shendl Tuchman, June 3, 2011, [blog post] retrieved Aug. 10, 2018, from www.goodtherapy.org.
9. “Interviewing Children About Sexual Abuse,” K.J. Saywitz and J.S. Dorado, Psychologist’s Desk Reference (2013).