2006 Summer, 46. How Should the Child's Voice Be Heard When Parental Rights and Responsibilities Are Contested?.

AuthorBy: Benjamin D. Garber, Ph.D. and Laura Landerman-Garber, Ph.D.

New Hampshire Bar Journal


2006 Summer, 46.

How Should the Child's Voice Be Heard When Parental Rights and Responsibilities Are Contested?

New Hampshire Bar Journal Volume 47, No. 2, Pg. 46Summer 2006How Should the Child's Voice Be Heard When Parental Rights and Responsibilities Are Contested?By: Benjamin D. Garber, Ph.D. and Laura Landerman-Garber, Ph.D.Legal doctrine concerning the post-divorce allocation of parental rights and responsibilities (hereafter PRR) has gradually evolved from the one-size-fits-all formula toward ever-more individually determined outcomes (Carbone, 1995). It is certainly for the best that we have abandoned the once-popular idea that child and wife belong to father/husband like so many cattle or sheep.1 We might also agree to eschew the "Tender Years' Doctrine," that standard which granted mothers de facto custody based on the belief that the female is necessarily the better nurturer (Strong, 1995). These generic rubrics succeeded in limiting court dockets as well as the time and expense and stresses associated with contested custody hearings, but routinely did so at the cost of the children's well-being.

This article will examine how, since those frontier days, forensic theory has moved toward recognizing each child as an individual functioning within a unique family system. This child-centered position calls for an individualized allocation of PRR. Initial efforts toward this end tended to be based upon the quantity of parenting time prior to separation. The "Psychological Parent Rule," for example, presumed placement with the primary pre-separation caregiver at the cost of almost all contact with the other parent (Buehler & Gerard, 1995). The "Approximation Rule" modified this rigid position to allow that a child's post-separation contact with each parent should be proportionate to his or her2 pre-separation contacts (American Law Institute, 2002; cf., Bartlett, 2002).

Today, child-centered professionals across disciplines have come to view a quantity-based allocation of post-separation/post-divorce PRR as clinically invalid and legally untenable (Krauss and Sales, 2000). Instead, a genuinely child-centered outcome is now understood to require an assessment of the child in the context of his or her family relationships. Toward this end, the Uniform Marriage and Divorce Act (UMDA; 1973/1975) recommends that the following criteria must, at a minimum, be considered in allocating PRR:

(a) The wishes of the child's parents;

(b) The child's own wishes;

(c) The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child's best interest;

(d) The child's adjustment to home, school, and community;

(e) The mental and physical health of all individuals.

The UMDA has been adopted by "a majority of jurisdictions explicitly in their child custody statutes and implicitly in their judicial determinations" (Krauss & Sales, 2000, p. 848). New Hampshire has adopted the UMDA in very general form under RSA 458-A, The Uniform Child Custody Jurisdiction Act. Massachusetts, as one contrasting example, has adopted very explicit directives3 as to the conduct of custody evaluations consistent with the UMDA.

For all of its broad acceptance and intuitive appeal, the UMDA has been criticized on two grounds. The most common concern emphasizes the absence of weightings or priorities among the UMDA criteria. This issue arises when, for example, the two parents' respective wishes and/or the child's wishes are diametrically opposed. The UMDA is also subject to criticism to the extent that it fails to identify how relevant data are to be gathered and by whom.

The Child's Wishes

If post-separation PRR are no longer determined by default or as an actuarial calculation, then the court faces the time- and cost-intensive responsibility of assessing each child's needs and wishes within the context of his/her unique family system. This necessarily raises the question of when and how a child's wishes should be heard.

Who better to address the child's needs and wishes than the child? The State of New Hampshire allows that if "a minor child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature minor child as to the determination of parental rights and responsibilities" (RSA 461-A:6II). Unfortunately, neither the law nor developmental science offers a clear definition of the concept of "maturity."

In psychology, maturity is neither a singular nor a reliably quantifiable state.4 In the extreme, obvious differences of maturity between children can be reliably referenced, as when one observes cognitive maturity differences between a three- and a ten-year-old. Differences within an individual can also be recognized, as when one observes that a child appears to be socially precocious despite cognitive and emotional delays. Such differences of relative maturity within an individual are referred to as "horizontal decalage" (Piaget, 1972).

Much as horizontal decalage is common among children, one particular pattern of developmental asynchrony may be characteristic of children whose parents are...

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