To be honest, I didn’t know (or didn’t particularly care) that the Brad Pitt and Angelina Jolie custody battle is still going on after five years. However, we recently learned that Judge Pitt granted temporary joint custody and that Jolie is upset that the judge has forbidden her children to testify on the case. Apparently, Jolie wanted the teenage children to share their experiences, needs, and desires about custody under a California law that allows children over the age of 14 to testify.
Michigan doesn’t have a specific law dealing with child testimony in custody decisions, but there is nothing stopping children from giving evidence. Most parents and lawyers prefer to keep children out of court, and it is generally frowned upon for someone to suggest putting a child on the stand – it appears unsavory, opportunistic, and puts the child in the middle of the parents’ battle. Will the parents coach the child? Will the parents take revenge against a child for an unfavorable testimony? Will the child feel guilty for adding to a parent’s misery? The risks seem to outweigh the benefits. However, there are situations when children are the only witnesses to domestic violence or substance abuse, or when children loudly express their desire to participate in the process that determines their whereabouts until they are 18 years old.
The child’s “reasonable preference” is one of the 12 best interest factors (provided in MCL 722.23) for a judge to consider when determining custody and parental leave (when the child is old enough to make a preference). How a judge determines this preference, however, is at the judge’s discretion. Most will consider a child’s age, maturity, and other factors when deciding whether to testify, or rather attend a private interview with the chamber judge. According to MCR 3.210 (C) (5), interviews can only be limited to the child’s guardianship preference, and the court is not required to disclose what the child has said. The court can question a child even if the parents disagree. Whatever a judge learns from such an interview is only to be considered for the reasonable preference factor and not for other factors.
Sometimes the court may be able to obtain additional information from children if the child is a guardian ad litem (“GAL”) or an educational coordinator (“PC”). These third parties typically have extensive powers to interview children, teachers, therapists, and anyone else who may disclose otherwise improper information that can be used to make recommendations to the court. Most judges appoint GALs and PCs that they have worked with in the past and trust, so they will likely follow their recommendations. Sometimes family therapists can be productive resources in capturing children’s interests in contentious situations. Parents and attorneys should be careful when choosing therapists trained in family therapy. Parental advocates should avoid speaking to the children to avoid any appearance of inappropriateness or interference. This also prevents the attorneys from being potential witnesses in the case.
Parents should carefully consider whether or not to involve their child in a custody battle. The instinct to protect children and keep them out of the fight is solid, but children today are savvy and vocal. The trend is to seek their influence on decisions that affect their lives. The key may be to find a process or an outside resource who is trained to work with children and minimize inappropriate influence. Parents should seek experienced lawyers who look after the well-being of the children and are open to creative solutions to custody disputes.
© 2021 Varnum LLPNational Law Review, Volume XI, Number 158