In divorce and custody proceedings, courts are often saddled
with the heavy burden of determining children's proper custodial
placement. In adjudicating this issue, courts must determine how
the child's preference is obtained and relied upon. This is a
process fraught with complexity, as courts must balance protecting
the child with procedural due process. In light of these
complexities, courts across the country have developed two primary
and interrelated means of "hearing" a child's "voice": First, by
allowing for judicial interviews of children, and second, through
representation for the child, whether through an attorney, a
guardian ad litem (GAL), or combination thereof.
Massachusetts courts are of the opinion that the child's voice
is an important factor in any proceeding where the child's
interests are at issue and a child's averred preference is evidence
to be considered in any custody dispute. In considering this
preference, Massachusetts courts have understandably attempted to
balance the desire to protect the child from the stressors of
testifying and the parties' constitutional rights. These decisions
are delicate and fact-specific, and there are few concrete rules.
The Massachusetts Appeals Court has stated in Ardizoni v.
Raymond that the child's expression of preference "must be
treated with caution," especially in staunchly contested
proceedings.
Judicial Interviews
The primary means of eliciting a child's preference is through
some type of examination, including by the judge. However, the
customary legal process in which a witness provides direct
testimony to a court with the opportunity for cross examination is
often unfair, ineffectual and potentially harmful to a child. As a
result, many courts have moved toward judicial interviews of
children, often in the judge's chambers. With this method children
are protected from the adversarial process and attendant emotional
trauma, particularly when a child is required to choose between its
parents in front of them and others in open court. However,
judicial interviews have drawbacks. Specifically, in
camera judicial interviews raise important ethical and due
process concerns. Judicial interviews require judges to be trained
in handling such interactions, particularly with younger children,
to ensure the interviews are fruitful while limiting undue stress
on the child. In terms of due process, in camera
interviews obviate the ability for other parties in the case to
examine or cross examine the child. Such interviews also leave the
parties and the appellate record without objective evidence of the
court's basis for its decision.
Massachusetts's history of permitting judicial interrogation of
children, including in chambers, dates back to at least 1865, when,
in Dumain v. Gwynne, the Massachusetts Supreme Judicial
Court held that the trial judge properly "may direct that the
children be brought before him, and may examine them privately."
This practice continues, albeit in limited circumstances, to this
day. For instance, in 1993, the Massachusetts Supreme Judicial
Court ruled in Adoption of Kimberly that a trial court
judge's decision to interview a seven-year-old child in chambers
was appropriate where the child's therapist opined that testifying
would be psychologically and emotionally traumatic for the child,
the parties stipulated to the interview and its recording, and the
questions were based on party submissions. These standards were
relaxed in 1998, when the Massachusetts Appeals Court held it was
proper for the trial court judge to hold an in camera
interview of the child even though the judge had not made a
specific finding that live testimony would traumatize the child. A
2015 Massachusetts Appeals Court case, In re Adoption of
Harry, reiterated that excluding parents from the child's
interview did not violate their due process rights, as long as they
were given the opportunity to rebut allegations.
Importantly, Massachusetts has determined that judicial
interviews are not exempt from the requirement that court
proceedings must be recorded. In Abbott v. Virusso, the
Massachusetts Appellate court vacated a trial court's decision,
ruling instead that the trial judge erred in relying on an
unrecorded, in camera interview of the children. The
Appeals Court reasoned that in order to abide by the requirements
of due process, trial courts must record all judicial interviews of
children, even if conducted in chambers, and produce the recordings
for the interested parties.
While judicial interviews are permitted, they are certainly not
mandated. For instance, in 1982, the Massachusetts Appeals Court
ruled in Hayden v. Hayden that the trial judge acted
within allowable discretion in determining the child was under the
influence of his father and thereby declining to conduct an
interview of the child in chambers. More recently, in Adoption
of Olivette in 2011, the Massachusetts Appeals Court upheld
the trial court's decision that testimonial alternatives like
judicial interviewing were insufficient to "eliminate the risk of
harm" - indeed, "severe emotional trauma" - that would likely
result if the "emotionally fragile" child was required to give
testimony.
Indeed, Massachusetts courts have even found judicial interviews
impermissible in certain situations. For instance, in White v.
White, the Massachusetts Appeals Court ruled that the trial
judge's examination of an adult daughter, in private, regarding the
custody of her younger sister was in error. The Appeals Court
reached its decision relying on the Massachusetts Supreme Judicial
Court case Adoption of Mary, from 1993, which counseled
that: "[d]ue process concerns and fundamental fairness require that
a parent have an opportunity effectively to rebut adverse
allegations concerning child-rearing capabilities, especially in a
proceeding that can terminate all legal parental rights."
Further, some courts have endeavored to find creative
alternatives to in camera judicial interviews that still
maintain an appropriate balance between protecting the child's
interests and the parties' procedural rights. For instance, in
2001, the Massachusetts Supreme Judicial Court held in Adoption
of Don that custody hearings do not mandate abiding "right to
face-to-face confrontation guaranteed to defendants in criminal
cases." Therefore, the trial judge acted reasonably in having the
parents sit in the back of the court room during the children's
examination - as the parties still had the opportunity to rebut
allegations and cross-examine the witnesses. Similarly, in 2002,
the Massachusetts Appeals Court ruled in Adoption of Roni
that the trial court was within its discretion to bar the parents
from the courtroom during the children's examination, noting the
children's therapists' opinion that the parents' presence would
traumatize the children, that the parents' counsel would be present
and permitted to cross-examine, and the children would not be
testifying beyond the parents' knowledge. However, the court noted
that parents should be prohibited from observing proceedings only
when "absolutely necessary." More recently, in 2011, the
Massachusetts Appeals Court held in Adoption of Thea that
the trial judge acted appropriately in permitting a
seventeen-year-old child to testify by telephone.
Notwithstanding these occasional allowances, it is clear that
Massachusetts prefers live testimony and an open courtroom whenever
feasible. For instance, in Roni, the Appeals Court
cautioned that "any order limiting parties' access to, or
participation in, any portion of the proceedings" must be
"narrowly tailored to the particular protection required
in the circumstances." Further, in Thea, the Appeals Court
noted that, were the circumstances different, the trial court
should strive to "benefit from face-to-face proceedings where the
judge would be able to assess not only her words but her demeanor
and body language." Similarly, in Olivette, the Appeals
Court stated its preference for live, open court testimony of child
witnesses when possible.
The other means of providing the child with a voice in the
matter is to procure representation for the child. Representation
is often necessary because custody proceedings present a unique
situation where the court's purpose is to determine the child's
"best interests," yet neither adverse party can reliably represent
or advocate those interests. Such representation generally comes in
two basic forms: a GAL, charged with representing the child's best
interests and an attorney for the child, whose purpose is to
advocate the child's wishes.
Guardians Ad Litem
In addition to conducting judicial interviews, a traditional
approach Massachusetts courts have used to amplify the voice of
children has been to appoint a GAL to represent the child's best
interests before the court. Specifically, Massachusetts General Law
c. 215, §56A provides that: "Any judge of a probate court my
appoint a guardian ad litem to investigate the facts of any
proceeding pending in said court relating to or involving questions
as to the care, custody or maintenance of minor children." A
testimonial GAL is often engaged to determine whether testimonial
privileges held by a child should be waived with regard to doctors,
therapists, and social workers who treat the child. A court may
also appoint a GAL to investigate, pursuant to M.G.L. c. 215, §
56A, and M.G.L. c. 215, § 6. Standards and training required for
investigative and evaluative GALs are provided by Standing Order
1-05, Standards for Category F Guardians Ad Litem/Investigators and
Standing Order 1-08, Standards for Guardians Ad
Litem/Evaluators.
Attorney for the Child
There appears to be a scholarly trend towards a more
client-directed approach to children's legal representation, with
an attorney appointed to advocate the child's stated preference in
a custody dispute. While there is no specific authority for judges
to appoint an attorney for the child, some judges assert that they
have authority pursuant to M.G.L. c. 208, § 16 as well as under the
broad inherent powers vested in the Probate Court relative to
children and custody. While other states have enacted statutes
authorizing the appointment of an attorney for a child in divorce
matters, Massachusetts has failed to enact such legislation.
Accordingly, children do not enjoy the absolute right to counsel in
divorce actions. Further, where counsel is appointed, the question
of payment arises as there is no authority to have the commonwealth
pay for the attorney. Some Massachusetts counties operate pro
bono ARC programs whereby attorneys provide representation in
cases where the Department of Children and Families (DCF) is not
involved. See, Massachusetts Law Review, Vol. 95, No. 3. Where DCF
involvement is imminent, the judge must inform the child of his or
her right to counsel at all hearings involving DCF. The child's
attorney can pursue discovery but is not subject to it. Practical
questions can arise as to the implementation of the ARC
representation tand there is little guidance in Massachusetts as to
how such issues are resolved. At this point, in the absence of
statutory or other guidance, they must be addressed on a
case-by-case basis. The attorney may also attempt to facilitate
settlement of issues because it is consistent with the child's best
interests.
Weight of Child's Preference
Once the court determines how it will receive statements of
preference are not accorded as much evidentiary weight if the child
is younger, although there are no bright-line age guidelines.
Ultimately, the weight accorded to a child's preference is a matter
of judicial discretion. For instance, in 1993 the Massachusetts
Appeals Court upheld the trial court's decision in Adoption of
Arthur, which gave considerable weight to the 14-year-old
child's stated desire to be adopted after the child was interviewed
by the judge with counsel present. On the other hand, in 1996, the
Massachusetts Appeals Court ruled in Ardizoni v. Raymond
that the trial judge accorded too much evidentiary weight to the
opinions of 11-year-old identical twins. Specifically, the Appeals
Court found the judge errantly ignored evidence from the children's
GAL and school counselor that the twins should not be separated,
instead relying too heavily on the individual children's
wishes.
This topic continues to evolve.
In 2012, Massachusetts Gov. Deval Patrick created a Working
Group on Child-Centered Family Laws, comprised of representatives
from various spheres. The Working Group's mission was to examine
current state laws and recommend any changes it deemed necessary to
preserve the best interests of children in the commonwealth. An
evaluation of the child's voice in the divorce process was one of
the Working Group's proposed goals.
The authors would like to thank the Administrative Office of
the Probate and Family Court of Massachusetts for permission to use
research conducted for The Voice of the Child committee, which was
chaired by the Chief Justice of the Probate and Family Court of
Massachusetts; Sara Helmers and Ryan Deck, who were each formerly
summer law clerks; and Danielle Starr, who was formerly an
associate at Prince Lobel Tye LLP.