Wednesday, May 21, 2014

Lawyers Should Not Interview Children in Custody Disputes

Even the thought of some of our colleagues, cornering the little children of their clients in a conference room in order to elicit a parental preference, causes recurring nightmares.  Fortunately, the Michigan Court of Appeals agrees, recently holding that a family court judge cannot order the parents' lawyers to interview their minor children to ascertain their preference among their parents.

Divorce at its ugliest; an old-fashioned custody dispute.  According to the Child Custody Act, the family court must consider all 11 enumerated factors in deciding which parent has custody.  One of the factors is the reasonable preference of the child.

In the Donohue v Donohue case, the Court of Appeals noted that the applicable court rule only provides for family court professionals to conduct such interviews.  The 3-judge appellate panel's opinion stated, "these interviews are meant to be confidential exchanges between the court and the child."

In this case, an Ingham County family court judge grossly misinterpreted the applicable statute and court rule.  Forcing a child to state her preference in an interview with her parents' respective advocates is wrong in the worst kind of way.  No child should have to deal with his or her parents' lawyer.

The intermediate appellate court recognized the potential for influence peddling and the exacerbation of emotional turmoil.  Here at this blog, we saw this case as a "no brainer".  Parental advocates should not be used to determine a child's reasonable preference.

Some tasks, particularly those assigned to the judiciary by the legislature, cannot be delegated to the attorneys.


Sal Wesson said...

It's strange to me that this was ever an issue. Divorce and custody proceedings are strenuous enough for children without being interviewed by a divorce attorney. Particularly because, if the child is under a certain age, their testimony can't actually be used as evidence. Sounds like unduly aggravating a bad situation.

Sal Wesson |

Timothy P. Flynn said...

Sal, some judges will interview the minor children to ascertain their "reasonable preference". The Child Custody Act provides for this. As a general rule, the judges discourage lawyers meeting with children and the family law bar generally frowns on the practice.

This post discusses a recent Court of Appeals case where the family court judge actually instructed the lawyers to conduct the interview. Now we have a MCOA opinion saying this is improper. This can arm us against such things in the future.

So you are very correct when you say: "unduly aggravating a bad situation."

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Thiago daLuz said...

I can definitely agree with this. Lawyers have an agenda. Kids can't understand that. They should be involved as little as possible in custody disputes, and any family lawyer I've spoken with has understood that well. Thiago |

Timothy P. Flynn said...


You are correct. Lawyers are hired to prosecute a specific agenda by one of the parents; the minor child cannot understand because the child loves both parents. But some of the lawyers we work with will take every opportunity, including something as invasive as interviewing the child.

Andre Franklin said...

I agree, children shouldn't have to deal with their parent's lawyer in a divorce. Let the parents and the lawyer figure out all that they can. The child can still have a preference when it comes to custody, but there is no reason to bring the lawyer into it.
Andre Franklin |

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Ted Smith said...

Part of me really wants to say, "leave the kids out of it!" However I realized that sometimes the only way to resolve issues is to talk to the kids. If lawyers would just talk to the kids with understanding and best interest for the child then the children may have some peace in the midst of all the chaos going on.