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Child's voice in court...seriously?

post #1 of 11
Thread Starter 
My dss is 10, unfortunately every time I post in here something else has arisen! I wish this was just to say how great everything is all the time!

*Background* I've been in dss's life for 9 years...officially stepmom for 6. We have completely split 1/2 legal and physical. Week on week off....

So...biomom has always talked badly about anything we do anyone we are around and anything that has to do with our household. DSS is very aware he is not to talk positively about our household...or talk at all about it. When in public and it's her week he doesn't even acknowledge us. It's really hurtful but we know that's his coping mechanism. Doesn't make it hurt less.

Long story short there have been some issues with her telling dss that her house is "home" and ours is not, he's just visiting. Even though he has always believed he has two homes. She also likes to do things like write his name on his homework and write "at home" next to it. It's very immature and weird.

So...we had another issue where there was a minor blow up in which she accused us of saying she is not his mother, to which my husband replied that we would never do that to dss, and we don't...tons of hypocricy here..TONS... She has always done this and her husband tells everyone that dss is his son. They call my husband by his first name to dss, always. And me by a derogatory term. Now, we sat down and had a conversation with my dss and he said that he thinks his mom wants him to choose his house....turns out she has been telling him for over a year that he is going to have to choose when he turns 12...and obviously lets him know what she wants him to choose.

WE do NOT believe in this, we would never, ever ask him to choose unless he brought it up and wanted to, for legitimate reasons. Otherwise we know he likes it the way it is...equal. Do you have experience with this? If one parent wants the child to choose will the courts ask them to? We are in California btw.

I just want to know if anyone else has had this issue, I know we are dealing with some parental alienation but without money and a truly objective (not mom-biased) court system, esp in this county, we don't feel we have a chance in changing this. Nothing, not even a counselor for dss has changed that....she just wouldn't let dss go back to that counselor.

It's so sad to see such an involved and loving dad be treated this way and I can't even imagine what would happen if she did convince him to ask to live at her house. She got him to treat us badly in public so I guess that it is a real possibility...he is really scared of her getting mad at him. Poor guy.

Thanks in advance for any input!
post #2 of 11
The book I keep recommending is Divorce Poison by Richard WArshak.
I think that you are in a good space because your DSS actually communicates this stuff to you. He's fearful, but he is able to reach out--not the usual behaviour of an alienated child.
One thing that my DH did from the start was print out a couple of "Children's Bill of Rights" (there are a few on the internet, for eg. by the AMerican Academy of Matrimonial Lawyers, if I recall the name correctly), and hang them up in a prominent place. When he first did it, he went through it, and said he promised to live by it. (He did not point out how their mom was not). And I have seen them sneak looks at it from time to time over the last several years.
Keep the lines of communication open, make your feelings towards him clear, and never badmouth Mama, and I think you will be fine.
post #3 of 11
(This is not intended as legal advice. I also don't know much about California law.)

Can Mom file papers with the court explicitly asking her son to choose? Probably not. Not here in WI, anyway, and nowhere I've heard of.

Can she file papers seeking sole physical custody? Absolutely. Once that happens, the court can take his wishes into account. (Mom seems to be confusing "he has to choose when he turns 12" with "once he turns 12, his choices get more weight.") Again, the courts I'm familiar with usually don't ask a child specifically where he or she wants to live, but they can do it in a roundabout way ("how do you like your current arrangement? what's it like living with Dad? with Mom?") and kids sometimes flat-out say things to the court/guardian ad litem.

As to whether your stepson's preferences will be given any weight--the older he gets, the more likely it will happen. A good GAL/judge won't just accept "I want to live with Mom," though--they'll try to find out exactly why, and whether the child's reasons are sound. "Mom will be sad if I spend time with Dad" or "Dad lets me eat cookies and Mom won't" are not great reasons; "Dad is better at spending time with me; Mom just leaves me with her boyfriend or best friend most of the time I'm supposed to be with her" is a better reason.

Also: Courts are increasingly less "mom-biased" and more "status quo biased." Often, at the initial divorce, that means Mom gets more time, because Mom has been the primary caregiver during the marriage. But, in your case, with 50/50, that's the status quo. The court will need a good reason to disrupt that--states vary in their exact burdens of proof, but Mom would basically have to show how her desired change would be better than the status quo.

Good luck.
post #4 of 11
I've been in a similar-ish situation (although my husband now has sole custody of his son, 10).

1- California is great, in terms of having their entire family code very accessible and search-friendly, online. Read, read, read, instead of guessing what your legal parameters are. Know the guidelines for modifying custody; what age the court is required to consider the wishes of a minor; whether parental alienation is recognized or whether there is some other phrase the courts recognize that communicates the same idea (I think it is "blocking" in CA - as in blocking access to the child, or blocking the child's healthy relationship with the other parent). If you're going to represent yourself (which is tough but not impossible) or if you need to minimize attorney's fees, it's best not to rely on anyone else to tell you what the law is. Know for yourself.

2- If the ex does continue to push him to choose one home, make sure you have a custodial evaluation and RESEARCH the evaluator beforehand. If you're in the San Diego area, DO NOT use Dr. Bryan Bruns. Dr. Richard Warshak and associates of his would be great, but that's an expensive route, with crowded schedules. Years ago, I e-mailed Dr. Warshak and he gave us a good recommendation (but for a CE in Indiana). I don't know if he'd do that again, but you might ask. Here, a custodial evalution costs $1,500-$2,000 or around $3,000 if the evaluator testifies (instead of just using his written report in court). I assume it's more in CA. You petition the court to order the eval. and the court should order the parties to split the fees evenly. I think it's worth the financial sacrifice, if at all possible. You need to explain to a professional Mom's efforts at alienation, to clarify that if the child winds up saying he wants to live primarily with her, it comes after years of manipulation, so perhaps "his" wishes should not be weighed as heavily as another child his age.

3- Before he got custody, my husband was reluctant to pressure my step-son to tell counselors the truth. He felt his son was already under such pressure and misery from his mom to say what she wanted him to say that he (my husband) didn't want to add to it. If you're struggling with the same thing, I think that approach is maybe not the best. Like it or not, if your husband's ex is insistant, then the older your step-son gets, the more his access to his dad will be affected by what he says to counselors or judges. It WILL be hard for him to say he wants equal access to his dad, if that's going to make his mom crazy...but it would ALSO be hard for him to say what she wants him to say, then see less of his dad, and feel guilty because his own testimony caused that. I think the "sane" parent needs to help the child see:
A- It's not his fault he's in this rotten situation of choosing between his parents. It's not right and it's OK for him to resent it.
B- But as long as he IS in that situation, he must tell the truth about incidents and about his own feelings. That's the only way people (judges, counselors) can make the right decisions about his life. If he tells the truth, he can walk away and let the judge make the final determination and not feel guilty. It will be out of his hands and he will know he didn't mess up the process by lying.

I am sorry your family's going through this. I really don't know what you do, with a mother who's so insecure about her relationship with her own child that she feels threatened if he has an equal relationship with his other parent; and who fears that YOU guys are doing/saying the same rotten things about HER that she does to YOU. It's a no-win situation for the poor kid. We've been there, too.
post #5 of 11
Thread Starter 
Thank you all for your input, I know I can always get some good info here! All of this information is good and I will talk to my husband about all of it. As we approach the big 12 we will also be encouraging him to tell the truth.

I am afraid we are past the truth though. No matter what we ask of him, he will definitely tell us, but he "forgets" everything. Either he is in denial or just doesn't want to acknowledge it. He is very open with the fact that he knows he is not allowed to like us and that he is scared to let his mom know he likes me for sure, and it seems his dad as well, although she is more careful about that one. She's just a mean spirited, insecure and immature person. You would think she was a teenager..or younger...but she is in her 30's!

We have read some of "Divorce Poison" and will probably purchase it instead of borrowing it at the library...

Jeannine, thank you for letting me know the term "blocking" that gives us more to look up. Sometimes it's hard to get through all the info available.

We would like to have an evaluation but when we did it before (for a situation involving his stepdad) they lied the whole time and dss just didn't mention things. He did say that I spent a lot of time in my room, "sleeping" haha! It was so ridiculous, the things that were said. (our room was also my office for my home business...what I was REALLY doing in there with the door shut...working!) His mom and stepdad both lied completely and the evaluator bought it all. It was terrible. We were not being evaluated though..they were.

Anyway, we have really tried to tell him that he doesn't have to choose. It seems like he is under the impression, and stressed about, the idea that at 12, he just has to choose, that's it! It's crazy. So much is going on and it really sucks.

My therapist seems to think that if he really has to choose, psychologically he will not have a choice, she has done this for so long he knows we will accept him no matter what, so there is more risk choosing us. If that makes sense. She may even be able to convince him to make a statement to a judge/mediator. We will definitely work on letting him know how much truth is important...but because of this situation we have been stressing that forever and he still has to protect himself.

Thank you again for the help, all of you, it really gives me a lot to think about...and I will look up the bill of rights, that's a good idea!
post #6 of 11
Oh man I'm so sorry for your DSS. That's a very rough situation to be in, and the amount of stress he's under is just to heavy, poor kiddo. I hope you will continue to keep us all updated as to how you're doing and know that we are all pulling for you and more for your DSS to be Truthfull and Strong, two very hard things in his life. Hang in there!
post #7 of 11
There's a book called "For Every Child" which talks about the UN declaration of rights for the child: I know you live in one of the only countries in the world which hasn't implemented it yet, but I'm hoping that it might be of help to your DSS anyhow.

It is still possible that the idea that he has to choose between two homes at 12 came from someone other than his mum, like school friends. If you're absolutely confident that the information came from his mum, at this point I'd consider legal advice.
post #8 of 11
Thread Starter 
Thanks, Yarngoddess!

I will check out the book, Flapjack, at first I thought you meant Un-declaration...I was a little confused. haha I found it on Amazon, but I will try the library. Thanks for the recommendation, it looks great! Also, we know for certain it came from her...he said so specifically and said that they have been telling him this for quite some time now. (he has also been scolded for telling people that his stepdad is his stepdad, he said he was told by him -SD- that he must call him his dad to other people, NOT his stepdad. Psychos.) Unfortunately! He doesn't have many friends in this situation, in fact the ones that are, I don't think he knows about. As in, they don't have equal custody situations like we do.

We will just keep on keepin' on! Doin' the best we can from our end. Jeesh.
post #9 of 11
I don't know about everywhere, but here even a 17 year old doesn't necessarily get to chose. It's based off of their reasoning. But a 12 year old? Much less likely. Unless he was saying "My dad is cruel and beats me and makes me sleep in a closet," the courts would most likely leave things as is. The worst I could see would be them cutting dads visitation, but thats very unlikely. They won't just take away time because the kid asks for it.

My sister was in a different situation, she lived with her dad and visited our mom 3 out of 4 weekends a month. It had been like that for years. When she was 9, my sister tried to get a say in court, unsuccessfully. They said she was too young to make a decision. They then took away my moms rights because she went back to court *for no reason.* She hasn't had any visitation with my mom since then and she's almost 18. She did try once, at 16, to get put back with my mom and again, the courts said she couldn't make a decision like that. Anyway, as you can see, even at 16 and being with her dad full time, asking to at least see my mom and wanting to live there was not enough.
post #10 of 11
This is most likely completely irrelevant, but these kinds of conversations horrify me. I can't imagine saying such cruel things to dd re: her father and their home together. My ex only has EOWeekend visitation, but when I talk about houses/homes I always say 'your house with mommy' and 'your house with daddy'. One thing my therapist told me is that children of divorced famililes often hear 'mommy's house' and 'daddy's house', which leaves them (even subconciously) thinking - 'Where's MY house then?' I'm so sorry your dss is going through something so difficult.
post #11 of 11
Originally Posted by DocsNemesis View Post
here even a 17 year old doesn't necessarily get to chose. It's based off of their reasoning. But a 12 year old? Much less likely. Unless he was saying "My dad is cruel and beats me and makes me sleep in a closet," the courts would most likely leave things as is. The worst I could see would be them cutting dads visitation, but thats very unlikely. They won't just take away time because the kid asks for it.
I think most states are like Indiana, in that the law specifies a certain age (here it is 14) at which "the wishes of the child" becomes ONE of the many factors the court is required to consider, in determining custody/visitation. Some of the other factors the court must consider may conflict with what the child says he wants...or a therapist might testify that the child has been so deeply influenced by negative manipulation from one parent that what he says he wants may not be what's best for him...therefore, a child does not automatically get what he asks for, even at the "magic" age.
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