Who Should My Child Speak with to Have a Voice in the Courtroom

[wolfcreekgal]

My question involves a child custody case from the State of: Illinois

I will be going to court in September of this year to try and regain custody of my child. He is 7 years old and very bright. He wants to have a voice in the courtroom, but is too young to physically do this. Would a child psychologist be the best option to record his opinions, thoughts and feelings or someone else? Also, I'd like someone to come out and evaluate how we live. Who would that be? Any help would be appreciated. Thanks in advance!

[cbg]

Family law is not my area of expertise. I know enough to know that what you are looking for is a GAL but I don't know enough to tell you how to have one assigned. The GAL would handle both issues, if I am not mistaken - "speaking" for the child and also doing the evaluation. Another poster will be able to give you more detail, I'm sure.

[aardvarc]

On what grounds are you seeking a change of custody? Abuse? Neglect? Failure to encourage relationship with you? Repeated contempt on visitation or other court orders?

The court likely has little to no reason to hear the voice of the 7 year old in a custody case. A 7 year old isn't in a position to competently evaluate bigger picture situations, which is why minors don't get to do things like decide where they live, drive, have checking accounts etc. The courts assume that if there were some situation where the 7 year old child's voice needed to be heard, such as relating to abuse, that the 7 year old would have already had extensive time sharing their voice with child protective services, law enforcement, etc. If the issue is one of parental interference or failure of the current custodial parent to encourage healthy relationship with you, or failure to abide by court orders, those are all things where documentation is what the court needs. In other words, the court doesn't need to know the opinions, thoughts, or feelings of the child. I know that sounds cold, but those things don't impact the legalities of custody (a child not wanting to go, no matter how bad, doesn't over-ride a parents constitutional rights to their children, for example) and courts are highly aware of how fragile, impressionable, and easily manipulated children can be. As cbg noted, a GAL might accomplish SOME of getting the child's voice heard, but it's important to understand that the child's voice in a custody matter get put behind MANY other factors in such cases (parental rights and best interest of the child, being at the top). If a GAL hasn't been assigned, you can ask for one.

Why does someone need to evaluate where you live? Custody isn't about comparing living situations - if the court has reason to take custody away from the current parent, it can and will do so, regardless of your living situation.

If you are asking the court to take custody away from the current parent, then you need to focus on presenting documentation or evidence directly related to what's wrong on the OTHER parent's end that would cause a court to consider doing that.

[wolfcreekgal]

I have heard that name before and couldn't, for the life of me, remember it. But, I think a GAL has to be court appointed and one has not been assigned in this case. My son leaves us in less than a month to go back to his dad's house in Illinois so, I haven't much time. I live in Texas, by the way. Thanks cbg!

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The court likely has little to no reason to hear the voice of the 7 year old in a custody case.

My circumstances mandate my son's voice in the courtroom for the following reason. His father is a die hard alcoholic with several DUI's. My son says he drinks constantly even taking him to the liquor store with him, leaving him out in the car by himself and then proceeding to drink the contents of the "little bottles" he buys in front of my son before driving home. Since I have no other way to document this (I live 1200 miles from Illinois) my son wants to explain what goes on there. Now..............can anyone tell me the answer to my original question? Thanks!

[aardvarc]

If or how a GAL would be beneficial depends on the circumstances of the case and your grounds for seeking change in custody. Ofr example, if the request for change is based on things like repeated defiance of a visitation order, the court doesn't really NEED a GAL to submit an evalutation and so wouldn't assign one. The judge can simply decide that the other parent has been warned too many times about not following the order, and can reassign custody accordingly.

On the other hand, if your request for change in custody is because of the child developing a pattern of behavioral problems, starting to do poorly in school, getting into conflicts, and you contend that this is the case because the current parent isn't around to supervise, or is in a new relationship and the child is acting out, THEN a high level evaluation would be appropriate - to help figure out if the problems are ones where the primary parent can make changes (ie get the child to counseling, integrate more) or if a totality of circumstance (like bullying at school, lack of discipline at home, etc) suggests that a change in custody would benefit the child. That's where a GAL can be valuable - to look at a WIDE variety of things impacting the child, and make a recommendation to the court. It's important to note however, that change in custody is often a LAST step, taken when the CP either isn't making efforts towards fixing problems, or where there's little the CP can do (for example, even the best CP can't stop bullying at school). In some situations, the problems the child is having will be the same no matter where the child is, and in those situations the court may find that keeping the child in place (consistency is important) and getting additional services for the child may be best.

If you can share the grounds under which you're seeking custody, we may be able to comment further.

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My circumstances mandate my son's voice in the courtroom for the following reason. His father is a die hard alcoholic with several DUI's.

Ok, so there's already existing documentation of those cases.

My son says he drinks constantly

ok - not an issue, yet - drinking alone won't change custody - not unless dad's on probation that prohibits otherwise legal drinking

even taking him to the liquor store with him,

Lots of parents take their children to the liquor store. Maybe not stellar parenting, but you're not going to show it DAMAGES the child, so still not impactful for custody, yet.

leaving him out in the car by himself

are we talking a few minutes to go into the liquor store? or some longer period/place?

No court is going to alter custody for a parent running into a store, liquor, convenience, grocery, or otherwise. Still no grounds to change custody, yet.

and then proceeding to drink the contents of the "little bottles" he buys in front of my son before driving home.

Bingo. THERE is a point that'll matter to the court. Learn to leave OUT all the many points that aren't relevant - huge laundry lists of things that aren't important only serve to muddle the actual issues and leave the judge feeling that you'll throw up anything from the color of dad's socks to the fact that he like his eggs scrambled instead of fried to see what will stick. Success in court depends on making relevant points quickly and with strong documentation.

Since I have no other way to document this (I live 1200 miles from Illinois) my son wants to explain what goes on there.

Now..............can anyone tell me the answer to my original question? Thanks!

The answer is that you can request a GAL. That person can talk with the child about the drinking and driving with the child in the car, as well as act to include any other relevant information from the child to the court. They can also be the one to do an overall evaluation for the court. Unless the court has some REASON to evaluate the conditions of your home, it's not relevant (unless you were not given custody originally because of issues with your living conditions- THEN the court may be interested in seeing if things are improved, and the GAL can do this also).

[wolfcreekgal]

Aardvarc- Wow! I cannot tell you how much I appreciate you taking the time to spell out all the pertinent information you shared with me. It really helped me and, believe me, I already know how difficult it is to change custody particularly since my son has been with his father for 3 years now. I am not holding my breath, however, I do want take a shot in the dark and see what transpires.
My visitation consists of 2 and a half months a year as it is and dad is trying to cut that amount even further for no substantiated reason except that he wants me out of their lives. Dad also listens in on every phone conversation I have with my son, telling him what and what not to say. Court order states I am to talk to my son at 7:00 PM Tuesday, Thursday and Saturday nights, yet I ALWAYS have to leave a message and, if my son calls back at all (he often does not) it's typically around 8:30 PM and then he can't talk but a minute or two as he has to go to bed. Dad controls EVERYTHING.......phone calls, visitation plans, etc. and I never have any say what-so-ever. It is truly maddening as I feel I no longer have a bond with my own child save for when I see him in person and, even then, when dad calls him he's grilling him constantly about what goes on here. Thank you again!

[aardvarc]

So just to make sure I understand...

You and dad split when the child was 4, and the child has lived with dad for 3 years and is 7 now, right?

What were the circumstances that led to dad having custody instead of you? Those elements will be important to examine if any reconsideration is to be successful.

How long ago were dad's DUI's and how many was he convicted on? Was he ordered to any substance/alcohol counseling, and if so did he complete it?

Court order states I am to talk to my son at 7:00 PM Tuesday, Thursday and Saturday nights, yet I ALWAYS have to leave a message and, if my son calls back at all (he often does not) it's typically around 8:30 PM and then he can't talk but a minute or two as he has to go to bed.

Phone records are your friend here. If you've got a court order with those specifics, it shouldn't be difficult to show the court a pattern of your short calls leaving messages, and incoming calls from dad's number showing you only got a few minutes with the child. Judges definately do NOT like that sort of thing. Just make a chart showing the day, date, time you called, and time dad/child called back, time call ended, and total time of that call. The easier you make it for the judge to digest the information contained in the records (which they can examine if they want, but don't just hand the judge a big stack of bills), the sooner the judge can start yelling and telling dad to knock that sh...er....stuff...off.

It is truly maddening as I feel I no longer have a bond with my own child save for when I see him in person and, even then, when dad calls him he's grilling him constantly about what goes on here.

This part will be easy for you to take control of. Don't allow dad to call when the child is with you. If the child has a phone, turn it off when the child is with you. If dad is calling your phone, simply answer, say the child is fine and hang up. If dad doesn't get the hint that you're not going to allow him to continue to control the situation, then it'll be time to step things up, such as by filing a police report for harassing communications (dad keeps calling). The court has awarded you visitation with your child. That means that the court has found you to be a fit parent, perfectly capable of taking care of the child without dad's help. You're under no obligation to talk to dad or allow dad to talk to the child on your time unless the court order specifies so. If you want to have a say so and stop dad from controlling everything, then you'll need to step up and start taking some control BACK for yourself. Remember, at the end of the day, it's not dad, but the COURT who is in control, even if it often feels otherwise. Make sure that you abide by the court's order, and make sure that to the best of your ability you document (like in a journal) things where dad isn't following the order, or tries to make up rules of his own. It's only the COURT'S orders that you're expected to follow. Dad won't be happy, but he'll be even LESS happy when the judge makes it clear to him that the person running the show is named "Your Honor".

[wolfcreekgal]

Thanks again, Aardvark! Your advice has been truly invaluable. I immediately ran for my court order after reading your last message getting very excited. But unfortunately, dad has the same rights as I do concerning phone visitation. : )

Dad initially won custody in the state of Wyoming, a VERY backwards state indeed. In fact, according to my research, almost 80% of fathers seeking custody win in that state. A great place for dad's wanting custody to reside, to be sure. Both of us were Pro se and neither of us had a clue what we doing. I thought my case would be cut and dry though as dad had left me for another woman the night his big dog bit our son almost putting out his left eye. Dad did not go with me to the emergency room nor did he answer my calls after my son and I got back home. In fact, I did not hear from him at all for a period of two weeks and then he only called to ask when he could pick up his belongings. I had photos and documentation of all of this. The judge said and I quote: " Everyone cheats these days" and, looking at dad, "Keep a better eye on your dog." Dad's evidence was a letter from our son's Day Care provider stating he appeared to be a better parent and he WON. It was that easy! Everyone has told me it makes no sense at all, but that is precisely what happened. I walked out of that courtroom feeling like I'd just been struck by a train and, of course, dad is looking at me with a huge sh*& eating grin on his manipulative face. And he has been controlling the situation ever since then, moving away to Illinois a mere three months after winning custody, successfully severing the bond I had established with my child. It's just been a rotten deal any way you view it.

[Dogmatique]

I'm sorry Mom, but that's really offensive - it's a backwards state because it doesn't automatically award custody to the uterus owner? Seriously?

In fact, MY research shows that the judges in Wyoming are like anywhere else - they decided custody based on BEST INTEREST. The courts did not feel that it was in the best interest of the child for you to be primary custodian. It's that simple.

Did you oppose the move or was he given permission?

[wolfcreekgal]

Oops! Forgot to add that the reason dad didn't come home is because he had moved in with another woman.

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Dogmatique,
I, in no way, have implied it's wrong for a father to win custody. It really should be in the best interest of the child, but in my particular case, the decision was clearly biased. When a decision that is as paramount as deciding a child's future is made by a court, I feel it's critical to look at the whole picture. Are you implying a judge saying: "Everyone cheats these days" is a righteous and/or just statement? Boy, it'd be a hell of a world we live in when it comes to a judge saying: "Hey, everyone commits a murder or two these days, no big deal." And yes, if adultery is no longer an issue, then when do bigger offenses, like murder, no longer become one either?

I will stand firm in my belief that Wyoming is a backwards state. It is MY belief and I am not attempting to persuade anyone else here to see things as I do. It's a free country last time I checked. You mentioned something about trying to prevent his move. Well, Wyoming is one of the ONLY states where a CP can move sans the need for either the courts or other parent's permission. I contacted a lawyer immediately upon finding out of the proposed move and was told there was nothing I could do about it. Sucks to be me, huh?