The preferences and voices of children in Massachusetts

Issue May/June 2016 May 2016 By Donald G. Tye and Michelle Rothman

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.