(This story begins below at 3.A.)
In this case, the judge has an important opportunity to interview the two girls, who are now old enough to speak for themselves. Some judges refuse to listen to children. But I have talked with many “trophy children” who are desperate to speak for themselves. Here are a few suggestions that might help:
1. Talk to children one at a time.
2. Give each child the choice of recording your conversation or having a stenographer present.
3. Consider not having parents or their attorneys present, since this can intimidate vulnerable children who may have bad associations with parents or their attorneys.
4. Relax. Do not wear a judicial robe.
5. Sit at the child’s eye level (but understand that some children have been taught not to look in adults’ eyes as if that were a sign of insubordination).
6. Once you are settled, the most important words to say are: “Thank you for taking the time to talk with me.” (Do not think that you are doing them the favor, but that they are helping you.)
7. Do not ask them to choose between parents.
8. Do not ask "gotcha" questions that are the hallmark of adversarial litigation. Within a few months children in these custody cases often learn to distrust guardians ad litem and psychologists who seem to ask trick questions and then twist the children's words to condemn a beloved parent.
9. Frame questions positively. For example, ask: “What kinds of things do you love doing with either one of your parents?” Ask interested questions about that activity. Then ask: “And what else?” If you find they are focusing on only one parent, you could eventually ask: “And what are the things you love doing with [your other parent]?”
10. Leave plenty of silence in the conversation. Do not rush in to fill the empty places. The child will begin to fill it. Smile. Nod. Say, "Yes." Show your interest. This conversation may show you which parent (if either) is the child’s life-line. This is very important for a judge to discern.
11. Another positive question might be: “If you had an entire day to do whatever you wanted, what would that be?”
12. Eventually ask: “Do you have any questions for me?” If you find one that you cannot answer, still affirm it: “I’m not sure of the answer, but I am writing down the question so I can think about it.”
13. Finish by looking in their eyes and simply saying, “Thank you.” This is a good time to add something positive about each child. (Never commend their appearance. Focus on their insights and ideas to show that you have heard what they most urgently wanted to say. This is no time to give a child any admonition or simplistic advice. A heartfelt "Thank you" is sufficient.)
A list like this is only a start. I have heard well-intentioned judges forbid parents to talk to their children about Family Court, as if a good parent could ever ignore their children’s most urgent worries. A good parent cannot do this without undermining the child's lifelong ability to have a trusting relationship. A good judge will recognize the futility of that order and search for a better solution.
Family Court is trying to get better equipped to help families that suffer from coercive control by an abusive parent. Listening to children is one of the best ways we can begin to improve our performance.
