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Lawyers Should Not Interview Children in Custody Disputes

Clarkston Legal May 22, 2014

Even the thought of some of our colleagues, cornering the little children of their clients in a conference room in order to elicit a parental preference, causes recurring nightmares. Fortunately, the Michigan Court of Appeals agrees, recently holding that a family court judge cannot order the parents’ lawyers to interview their minor children to ascertain their preference among their parents.

Divorce at its ugliest; an old-fashioned custody dispute. According to the Child Custody Act, the family court must consider all 11 enumerated factors in deciding which parent has custody. One of the factors is the reasonable preference of the child.

In the Donohue v Donohue case, the Court of Appeals noted that the applicable court rule only provides for family court professionals to conduct such interviews. The 3-judge appellate panel’s opinion stated, “these interviews are meant to be confidential exchanges between the court and the child.”

In this case, an Ingham County family court judge grossly misinterpreted the applicable statute and court rule. Forcing a child to state her preference in an interview with her parents’ respective advocates is wrong in the worst kind of way. No child should have to deal with his or her parents’ lawyer.

The intermediate appellate court recognized the potential for influence peddling and the exacerbation of emotional turmoil. Here at this blog, we saw this case as a “no brainer”. Parental advocates should not be used to determine a child’s reasonable preference.

Some tasks, particularly those assigned to the judiciary by the legislature, cannot be delegated to the attorneys.