Dividing the Child: Should Children be Involved in their Parents Court Battle?

Current California law requires the courts to give due weight to the wishes of a child who is 14 years of age or older regarding their custody and visitation arrangements if that child is shown to be of “sufficient age and capacity to form an intelligent preference as to custody or visitation.” However, AB 2098, currently under consideration by the state legislature, will move the age of decision making capacity from 14 to 10 years of age if it is passed.

This bill, commencing July 1, 2017, would instead require the court to permit a child who is 10 years of age or older, of his or her own volition, to address the court regarding custody or visitation, unless the court determines that doing so is not in the child’s best interests. The bill would require the court to determine whether the child is addressing the court of his or her own volition and to provide the child with an age-appropriate form developed by the Judicial Council that explains to the child specified information prior to the child addressing the court regarding custody or visitation. The bill, commencing January 1, 2017, would require the Judicial Council, no later than July 1, 2017, to develop this age-appropriate form (https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB2098)

On a practical level, this bill may sound promising at first. Why shouldn’t children have the capacity to choose the parent with whom they want to live? Why shouldn’t they be in control of the visitation arrangements they will be subjected to take part in as they learn to form independently operating relationships with either or both parents of their choosing? It is their life, is it not! Shouldn’t it be their choice?

Children are ultimately the ones who are subjected to the will of a third party, whose decision will ultimately affect the course of their academic, social, and familial future until the time they are 18. Unfortunately in today’s arena of highly contested divorces and custody conflicts, it is the children who are placed in the middle of the family conflict that is forever dividing the landscape they were born too. While it used to be common ground to tell children, “it is not your fault,” regarding the division of their family tree, now the state legislature and the judicial officers will be placing the capacity, no the responsibility to decide as to what parent they will lose: Oops, I mean which parent they will choose, even though both parents are ultimately at fault for their childish inability to take that same child’s best interest into account. A child simply must have the answer of what is in their best interest: Right. Or do they?

At first sight, this seems to be a progressive step towards children’s rights. From a purely philosophical perspective, it would seem to grant children the rights to exercise judgment under the guise of free will. However, from a practical perspective, can a child be expected to house this burden of choice, where an audience with the judge “will” come with a heavy price tag, one they may not be able to shoulder as the repercussions of their decision immediately takes form as a final order is rendered by the court. What emotional repercussion will take place for this child, and at what expense will their development be affected due the decision made to choose one parent over the other? Is a child 10 years of age even capable of making a decision of this magnitude? From a developmental perspective, the answer is clearly, NO!


From a developmental perspective, a child 10 years of age is in a socially awkward stage of life. This stage of development is commonly called latency. During latent development, a child has mastered core concepts of survival during infancy through early childhood, and can effectively care for themselves in a limited, but highly dependent manner. They remain dependent on their parents, even though either / or both parents may be unable or even unwilling to find the middle ground when it comes to the emotional, developmental, and spiritual needs of the child they fight so vehemently for within a custody dispute. This is especially difficult for a child of this age, who not only knows of the physical and emotional dependence they have on their parents, but concurrently lacks the cognitive capacity to formulate a multifaceted approaches to understanding the specific ramifications an either / or decision such as custody determination or visitation arrangements will have on their personal development. Children of this age, simply cannot think beyond the either or perspective enough to understand the consequences associated with their decision.

The idea of allowing a 10 year old a voice to choose custody preference or visitation arrangements becomes even more flawed when viewed from a psychosocial or a cognitive developmental lens. During their latent development, a period of childhood that begins roughly at 6 and lasts until 12 years of age, a child becomes more keenly aware of their personal strengths and weaknesses. This is especially true in areas of social, educational, and familial expectations. Values are passed on during this time, and these are linked not only to educational and social expectations, but specific values the nuclear family finds important to pass on to their offspring. During latent development, a child develops the capacity to see things from a “concrete operational perspective,” can reason about objects and simple relationships between them, but lacks the capacity to entertain multifaceted hypothetical scenarios common to abstract thought (Newman & Newman, 2003). While children may have the capacity to focus on relationships among adjoining or related ideas, they lack the capacity to see how draw inference as to how these ideas can related to other areas of life. In order to complete this form of complex thought process, a child must develop the capacity to abstractly reason, a developmental task that does not occur until mid adolescence.

Because children lack the capacity to form multifaceted, complex ideas around the ways either / or decisions can affect a variety of other factors that occur within their life, they are often seen to make rash decisions, which ultimately can be based upon the ulterior volition of one parent, where the will (whim) of the child can and ultimately will sabotage what is in their best psychological interest. From a cognitive perspective a child is unable to understand the brevity of the decision they are forced to make, regardless of a form they have been given to complete may imply.

Form a psychosocial perspective, a child during latency Must learn age appropriate social, familial, and occupational expectations. It is during this stage that a child needs his or her parents the most. Despite the division that occurs during the divorce process, the more perspectives a child receives regarding values and ethics formation, the better equipped they are to enter and model the complex thought capacities needed to form abstract ideals about the world in which they live.

A child during latency is said to enter a psychosocial crisis of industry versus inferiority. They learn social industry during this stage of development, which is inclusive of family values and / or expectations. If a child fails to engage appropriately in social industry development, the begin to lack the self esteem needed to push on towards further avenues of success. This oftentimes stands as the catalyst for future self-esteem problems that form the basis for numerous mental health disorders seen in early adolescence and early adult life. AdobeStock_54686954.jpeg

Childhood is a special time where they must learn ways to appropriately interact with the environment that they not only live within but will eventually make their mark upon. Pushing children to grow up too quickly is never a good idea, expecting them to make decisions they are simply incapable of is a poor choice not only for the children, but also the courts who would implement this law, and the state legislature that is imposing a parameter on a population that cannot meet the expectation given. This is a bad idea. Not only from a psychological and developmental perspective, where the child who was once sheltered from the atrocities played out in family court will now be exposed and offered a voice as to what is the best of the two worst case scenarios.

If you’d like to get more information, or if you’re ready to speak to an attorney, please contact Maples Family Law.