A messy split, painful divorce, and bitter custody battle. At the centre of it are the kids, whose daily lives are about to be dictated by a family law judge who has only been offered a glimpse into their lives and living conditions.

How do courts make these judgements? Given a custody decision affects children the most, wouldn’t it make sense to have them weigh in — especially in cases with allegations of abuse or neglect? Apparently not.

Crikey digs into the tricky world of child custody decisions.

Why are kids left out of custody decisions?

Australia’s controversial family law system has a tendency to implement policies based on misinformation over expert advice

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The Family Court must prioritise a child’s safety in their rulings — but judges also often stress the importance of an older provision: that children have a right to regular contact with both parents.

The problem? Kids often aren’t asked about their safety. When it comes to family violence and custody decisions, research and experts agree that children are often ignored, misinterpreted, or placed in dangerous and uncomfortable situations with their alleged abuser. 

Kids aren’t consulted in family law

The Australian government recommends parents don’t “pressure [their] children to make decisions about their own care. Children love their parents and it can be harmful to put them in a situation where they feel that they have to choose between their parents.”

This recommendation, according to Director of Women’s Domestic Violence Court Advocacy Service NSW Hayley Foster, becomes a major issue when violence is involved. 

“We have cases where children won’t be asked at all,” Foster says.

If they are asked, interviews are often conducted by a family consultant who chats with the parents and sometimes the child, and prepares a report. The consultants are social workers or psychologists. There’s no accreditation for being a family consultant; they do not need to have specialist training with domestic and family violence.

“I’ve analysed these cases and it’s frightening,” Foster says.

“Children are being asked questions in a way that may encourage a certain view. And kids who do present their view are often misconstrued and analysed by consultants as the child being angry,” she says.

The reporting has been so bad, it sparked a parliamentary inquiry which recommended doing away with family consultants all together. 

Jargon and misinterpretation

There may be reason for keeping kids out of courtrooms — they’re emotive places. Lawyers will often ask hard questions in a confronting way, challenging everything someone says to paint a situation in the best light for their client.

When children are placed in the witness box to testify about their living conditions and preferences, they face unempathetic lawyers who use legal jargon most adults struggle to understand. 

Studies have found children misunderstood questions, and felt they couldn’t say what they wanted. They were confused about how they could answer, and were often cut off or interrupted by lawyers before they could get their point across. 

Bringing the abuser in

The most stupefying part of the process is that children are often asked about abuse allegations in front of the alleged abuser. This is a terrible idea for a number of reasons, Foster says.

Children often refuse to speak, or end up telling outright lies about abuse allegations they had previously disclosed. This can fall back on the other parent who are sometimes perceived as being vindictive, inventing abuse to win custody. 

“It would never be recommended to speak with a child where there are concerns around the safety of the child around that carer. There’s absolutely no way that it’s best practice for that child to give their view in the presence of that parent,” Foster says. 

And yet it happens. Repeatedly, leading to children being placed with an inept or abusive parent. 

Courtrooms can be chaotic places for a child, and keeping kids out of them might make sense.But relying on untrained family reporters or time-poor judges to choose what is best simply doesn’t. To prioritise safety, kids need to be able to weigh in on custody decisions.