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Divorce Diaries: Should We Let Kids Decide Custody?

What if the child actually knows what's in the best interests of the child?

Flexible custody of a child: How to parent well through a divorce

A long-divorced friend of mine is struggling with her daughter. The girl is 12, and no longer wants to abide by her parents' carefully-crafted "parenting plan" that has her switching off weekly at each parent's home. This plan started when she was 3 years old. Like many parents who split, they wrote the original parenting plan when their daughter was a toddler and never looked back. Now she's a tween and it no longer works for her life.

Who decides custody?

"She's very clear about it," her mom tells me. "She loves her dad very much, but says her life is too complicated now to be moving around. She wants to see her dad, but just not sleep over at his place anymore. I keep saying, 'well, that's what we decided and so we're sticking to it.'"

But now her parents are re-thinking their automatic answer.

Her Mom explains:

"She was really angry with me about this and she said something that absolutely shut me down. She said she felt she was being punished because her parents get along. If her Dad and I were fighting over custody, she said, then she would have had the chance to talk to the judge and tell the judge about her life and what she preferred to do. But since we're not fighting, she feels she is not being heard."

My friend assured her astute daughter (who is bound for the debate team, then law school, no doubt) that it's far better to have parents who get along than who are battling for custody. But she was struck by how silenced her daughter felt.

In reality, even when children testify about their preferences they may not be placed where they want, experts say, but at least someone asked them.

Tell it to the judge?

"We spent so much time insisting on this schedule and making sure she stuck to it. We didn't want her to try to play us against each other or feel she had the power to decide the family custody stuff. She was 3 then. Now she's 12, and has this whole other life," my friend says. "She's not nearly as dependent on us as she was. I certainly don't want to give her too much power in the decision-making of our family, but I fear that giving her none is no longer the answer."

Let's start a revolution: Ask the kids about custody

Deciding to end your marriage and then making that decision a reality are two of the hardest, saddest choices you can make if you have children. Dividing "assets" like a home or your wedding china are a bummer. But "dividing" our greatest marital bond - our children - is heart wrenching.

Thankfully, despite how hard splitting up can be, today most parents find a way to come up with their own custody arrangements, as defined in their co-written "parenting plan." If you can work together to make it work, that is no small miracle. And mercifully, most of us get there, somehow.

For those who can't, you place your family's future in the hands of a family court judge. In the harshest cases, when there is a bruising custody battle, the children are forced essentially to choose one parent over another. The judge decides and that is that. Most parents stick to those schedules until their kids "age out" of the divorce plan at 18. Then, the system assumes, they become the deciders.

Because it's so stressful and dredges up so much, most parents don't want to revisit the issue of custody, even if the kids were toddlers when they split and may have entirely different needs and preferences as tweens or teens. The entire family remains held hostage by the original decision, which may - or may not - still reflect the best interests of the children and the parents.

Parenting plans must grow with the children

A recent piece in The New York Times by Ruth Bettelheim, a long-time marriage and family therapist, thoughtfully argues for a revolution in how we handle custody. If we truly want to do what's in the best interest of our children, she argues,: "all parenting plans should be subjected to mandatory binding review every two years," In effect, our custody decisions and agreements should grow with our children.

What's the cost of not asking the kids? She writes:

"Rendering children voiceless and powerless to meet their own changing needs, or burdening them with guilt if they try to do so, is in no one's best interest. It either creates hardship for children who grin and bear it or instigates a string of provocative and damaging behaviors in those who embark on increasingly desperate attempts to make someone notice that something is wrong. "

She argues powerfully that we do ourselves and our children a great disservice:

"Once children have reached the age of reason — generally agreed to be about 7 — they should be recognized as the ultimate experts on their own lives. We all resent it when others say that they know better than we do how we feel and what is good for us. Nevertheless, we subject children to this when we call in experts to evaluate their lives over a period of days or weeks, as part of the custody process, instead of just listening to them."

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