Can a child participate in custody or divorce proceeding?

Posted by Akosua Agyepong | Mar 26, 2021

Oftentimes, parents in custody-related cases believe that the best way to resolve the case is to have the children speak in court.  The Massachusetts Family Court, however, does not allow children to participate in custody disputes.  It is generally the Court's goal to keep children out of legal matters and allow the adults involved to resolve issues in the children's best interests.

In some instances, however, if the Court deems it appropriate, it may allow children to participate in custody matters to determine the children's best interests or their preferences or positions.  The Court may achieve this through a Guardian Ad Litem (GAL) or an Attorney Representing Children (ARC counsel).  Where a proceeding is contentious or complicated to the point that a judge believes having a neutral party intervene and report to the Court to assist it in making decisions, it will appoint one of these individuals.

A GAL is usually a mental health professional or a trained attorney who works with separating families to determine the children's best interests.  Depending on the issues involved in a case, a GAL will interview the children, the parties, and other relevant parties to make a report and recommendations to the Court.  The GAL's involvement tends to help the parties and the Court determine how to resolve the case and also allows the children to express themselves.

A child's preference in a custody-related matter “is not given decisive weight, although it is a factor to be considered.” Bak v. Bak, 24 Mass. App. Ct. 608, 617 (1987).   As such, if the Court determines that it is appropriate for a child's preference to be taken into consideration (depending on age), an ARC counsel, may be appointed to specifically represent the child and report the child's preference.  Even with a child's preference being represented, it does not mean the preference would be adopted, as a child's preference is not synonymous with his/her best interests.

About the Author

Akosua Agyepong

Associate Attorney

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