On July 1, 1986 Vermont law abandons the legal concept of
Child Custody in Divorce cases. A concept of division of
parental rights and responsibilities (RAR) towards children
between parents is used instead. Agreements between parents
which allocate RAR are given a preference, and judicially ordered
joint custody
against the wishes of a parent is repudiated.
The new law enacts carefully enumerated factors, for
determining a child's best interests
and requires use of the
criteria in allocating RAR. The criteria direct judicial inquiry
into those factors which promote healthy growth of children. In
addition, new evidentiary requirements for child testimony are
created, and rules governing parental agreements are provided.
The law will certainly change most aspects of divorce law
where children are involved. It was drafted by the Family
Proceedings Advisory Committee
(FPAC) in response to the
Legislature's request for an in-depth study of divorce and
custody law.
The law's stated purpose is to encourage divorcing parents to maintain the maximum possible contact with their children, unless there is evidence that this would be harmful to either a parent or a child. This goal is consistent with social research findings which suggest that children's outcome after divorce is effected positively by a continuation of a loving relationship with both parents, and adversely by parental conflicts, Wallerstein and Kelley, Surviving the Breakup, Basic Book (1980).
Its second purpose is to provide children with adequate
child support. Child support, however, is not a part of RAR.
The law gives preferential status to agreements between parents
concerning allocations of RAR, but does not give any preference
to agreements regarding child support. Support is not a matter
of contract. The court will determine for itself appropriate
support because it protects the children. Thus the policy of
Barbour v. Barbour, 146 Vt. (January 1986) is continued.
Simultaneously with passage of the Divorce Act, the Legislature
passed revisions to the statutes governing child support which
establishes a presumptive level of payments. That act, however,
is not effective until April 1, 1987, and is not considered in
detail here. Its existence, however, accounts for the omission
of support
as a RAR.
Vermont's use of the concept of rights and responsibilities
(RAR) towards children is modeled on Florida (§ 61.13) and Maine
(19 MSA § 751) statutes. It is closer to the Maine statute in
that both laws abolish the term custody
while Florida's does
not.
The concept of custody
was abolished because it had become
a winner take all
proposition which did not account for the
reality that divorce with children alters, but does not
eliminate, ongoing parental rights and duties. Custody
became
an attitude which reflected the idea that a child is a chattel to
be awarded to the most meritorious spouse. Custody
implied
that the totality of rights resided in one parent. That concept
is antithetical to parental sharing of love and duty. It is also
inconsistent with the concept of RAR and so was discarded. Just
as allocation of child care responsibilities is changing within
marriages, it is also changing within divorces. The new Act,
seeks to accommodate the changing nature of divorce and the
relationships it generates by refracting custody
into its
component parts.
A central policy of the act is to continue the kinds of
parent-child contact, including shared parenting, which existed
prior to divorce, and to give a preference to parental
agreements. All agreements, however, are subject to judicial
scrutiny. Courts must disapprove them if they are not in the
best interests of a child. The criteria for determining what is
in the best interests
are those used in contested cases. They
logically form the basis for the mandated review of parental
agreements as well as contested cases.
The statute attempts to help parents focus on the practical implications of planning for their children by mandating that agreements of RAR include provisions that address at least the following:
Although dispute resolution mechanisms are only required in cases where RAR are to be shared or divided (where possibilities for disputes are abundant), they are recommended as a standard feature of agreements in general. It is difficult to foresee and guard against all possible areas of future disputes. Where agreement exists on methods for resolving them, it is probable that disputes will be settled earlier.
The act makes consideration of the criteria in 15 V.S.A. § 605 mandatory. Under prior Vermont law, based on the Uniform Marriage and Divorce Act, the custody criteria were entirely precatory. Moreover, they were so vague as to be useless for predicating relevant evidence in custody decisions. For example, in Mayer v. Mayer 144 Vt. 214 (1984) the Supreme Court held that the trial court's duty was merely to make findings revealing the basis for its decision so it could be reviewed on appeal. The court suggested no substantive criteria. All the Supreme Court attempted to do was require an explicit statement of the trial court's bias; it did not attempt to define what factor the decision should be based on. See e.g. Ohland v. Ohland, 141 Vt. 39 (1982), Korshak v. Korshak, 140 Vt. 547 (1982). Also, see Davis v. Davis, 143 Vt. 100 (1983) where the Court remanded for new findings in a custody case, but only to have the trial judge give his reasons for the decision. The cases are legion confirming the wide discretion of the trial judge. No case can be found in which the Supreme Court reviewed the trial judges' discretion based on statutory factors. That will now change.
Vermont will join such states as Washington and Montana
which require the trial courts to make specific findings on each
of the pertinent criteria. See e.g. Murray v. Murray, 28 Was App
187, 622 P.2d 1288 (1981); Markegard v. Markegard, Montana 616
P.2d 323 (1980). Under prior law every custody case was a plot
designed by lawyers to fit the presumed individual idiosyncrasies
of the trial judge. Now, evidence tailored to the best
interest
criteria should give every case a similar plot, and it
will be analyzed in the same framework.
The intent of the law is to reverse the judicial habit of
making wide ranging social value choices as happened in Lafko v.
Lafko, 127 Vt. 609 (1969) where Dad lost custody because he was
living with a divorcee — a fact not deemed conducive to the
child's moral welfare. Entirely omitted from that case and
virtually every other Vermont appellate decision, is any
discussion of how the facts relied on affect the child's growth.
Now, decision makers will be required to focus on factors
affecting the healthy physical and emotional growth of children.
The touchstone of decision is to concentrate on facts allowing
children to reach their own potential as autonomous adults. No
parental preference is accorded the sex of the parent or the
child.
A corollary to that purpose is the new evidentiary rule which prohibits the introduction of evidence of parental conduct which cannot be shown to affect the parent's relationship with the child. 15 V.S.A. § 667. Hopefully this rule will bring an end to using the court room as a place where parental character assassination is sanctioned. Thus Vermont, through a rule of evidence, joins an evolving majority rule that, parental conduct, such as sexual variation, alone, does not disqualify a parent from being awarded physical control of or substantial contact with a child, unless evidence exists that it interferes with the parent-child relationship or is detrimental to the child. See Doe v. Doe, 222 Va. 736, 284 S.E. 2d 799 (1981); Schuster v. Schuster, 90 Wash. 2d 626, 585 P.2d 130 (1978); D. H. v. J. H., 418 N.E. 2d 286 (Ind. App. 1981); Ashling v. Ashling, 42 Or. App. 47, 599 P.2d 475 (1979), DiStefano v. DiStefano, 60 A.D.2d 976, 401 N.Y.S.2d 636 (1978).
Before examining the criteria themselves, a key provision of 15 V.S.A. § 665 (a) must be emphasized, viz:
When parents cannot agree to divide or share parental rights and responsibilities, the court shall award parental rights and responsibilities primarily or solely to one parent.
The provision is not intended to permit courts to repeat the
disastrous California experience where the law empowered courts
to order joint custody
even where one parent objected. The
consequences of forced joint parenting was validly described in
Lumbra v. Lumbra, 136 Vt. 529 (1978). Such orders perpetuate
strife, and while the limited available research indicates that
continued contact with both parents is beneficial to children,
research also suggests that continued interparental conflict is
bad. When parents are unable to agree, and ask the court to
intervene, the court must choose squarely between competing
spouses and give one or the other full authority for child
rearing. This thrust of Barbour, supra is also confirmed by the
law.
The court does have discretion to award the parent without
physical responsibility
some aspects of parental rights, such
as, perhaps, religious guidance; so long as the rights awarded do
not interfere with the primacy of control of the other parent.
Such orders, however, are subject to criteria 8 (15 V.S.A. §
665(b)(8):
(8) the ability and disposition of the parents to communicate, cooperate with each other and make joint decisions concerning the children where parental rights and responsibilities are to be shared or divided.
This criterion requires the judge to assess the ability of the parents to cooperate. Thus if religious training is a battleground which would disrupt other parenting functions, that aspect of RAR should not be divided.
The criteria for awards of rights and responsibilities expressed in 15 V.S.A. § 665(b)(1) through (8) are unique to Vermont. Some of the individual criteria are found in other state laws, but no state contains all of them. The theoretical basis for the criteria is health of the child, both physical and emotional. They rest on the assumption that the parent who provides the optimal opportunity for a child to grow up as a healthy autonomous individual should be preferred.
All the criteria will not apply in all cases. The evidence and the individual situations of the parties will dictate which criteria apply. The law orders the criteria in logical sequence, parental love, for example, is implicit in all criteria. Judicial discretion, however, will still be required to determine the weight to be given each factor in each case.
Criteria 665(b)(1) provides the court shall consider:
The relationship of the child with each parent and the ability and disposition of each parent to provide the child with love, affection and guidance.
There are two aspects to this criterion: (1) the
relationship between parent and child and (2) the ability and
disposition to love. The law does not specifically direct courts
to consider the mental health of the parties. That aspect of
personality is implicit, however, in considering the parent-child
relationship and the ability
to provide love, affection and
guidance.
This ability and disposition is of paramount concern. It is
obvious that healthy growth of children requires parental love,
affection, and guidance. The statute purposely does not refer
simply to love
; it links together love, affection, and
guidance.
These words are a familiar lexicon. To give them
meaning, however, we need to know about the kind and quality of
their character. For example, although a parent might profess
love for a child, he might use that child as a spy to report on
the activities of the other spouse. Such acts would indicate a
need to use the child for that spouse's own advantage to meet his
needs rather than the child's. The kind and quality of love
would therefore, be suspect. Professed love, without acts of
affection such as actively enjoying aspects of a child's
personality would not suffice. Similarly, love, without guidance
is of little value in nurturing a child. Guidance
implies some
action to develop an ethical sense of right and wrong in a child.
A simple example, perhaps, would be telling a child who strikes
out in a baseball game that throwing the bat in anger is not
okay, while vowing to do better next time and to control his
anger is okay. The goal of this criterion is to direct the
inquiry to the realities of a loving relationship. It directs
the court to prefer that parent who is most able to support the
child as an autonomous being by providing that love, affection,
and guidance which will allow the child to develop his or her own
personality.
The House version of the act included the modifier
continuous
prior to love, affection, and guidance.
The word
was deleted by conferees for fear evidence of an occasional burst
of anger might disqualify a parent. The House version included
the word to emphasize that intermittent expressions of love by
word or deed did not reflect a healthy parental love. For
example, the parent who punctuates absences with gifts and
expressions of love would not demonstrate a healthy relationship.
The conferees agreed the word was unnecessary because the term
love
itself implied an act of continuity.
Under this criterion the court would presumably be influenced by evidence of deeds of love and affection involving some parental sacrifice and accommodation of a child's needs rather than mere verbal expressions of the required emotion.
Criterion (2) speaks of both ability and willingness of a parent to provide physical necessities:
The ability and disposition of each parent to assure that the child receives adequate food, clothing, medical care, other material needs and a safe environment.A parent who was able to provide child support, for example, but failed to do so, would not be preferred. (We note however, that the financial ability to provide for the child is purposefully missing from the criterion. The Act, in a later section, specifically, prohibits any consideration of the financial resources of a parent in awarding RAR. 15 V.S.A. § 665(c).) The same principle applies to other physical necessities. This criterion is an extension of the first, since a loving parent would provide physical, or medical necessities if able. It places a neglectful parent in a deservedly disadvantageous position. A parent who withholds the basic necessities of life through choice or incapacity, should not be given child rearing responsibilities.
Criterion (3) speaks of a child's developmental needs. It requires the court to consider:
The ability and disposition of each parent to meet the child's present and future developmental needs;Students of children's growth and development have written extensively about developmental needs. In general, as children age, their needs change. An infant may require constant parental care, for example, while an adolescent may require discipline and role modeling. Child development experts assume that a child must complete each developmental task before he or she can successfully move onto the next. The criterion is intended to open the evidence to a focused presentation relating to a child's development. Whether the evidence is expert or lay, it should be specific. For example, a mother might testify to her belief that a six-year old child needs to learn to make friends outside of the immediate family and so encourage peer relationships, while the father showed ignorance or either the need or the means of bringing it about. The mother, presumably would be preferred. The criterion, it should be noted, includes both ability and disposition. Thus some evidence of action to satisfy the identified developmental need would be persuasive. The following table illustrates the principal stages of children's growth and their developmental needs. It should guide the presentation of evidence. A more detailed guide to developmental needs is found in the VBA monograph. Child and Family Development and Human Services Resources (1980).
| Age and Stage | Tasks | Needs | Necessary Support Systems | Crises |
|---|---|---|---|---|
| * This table was developed by Mary Jane Egerton, MSW, of St. Johnsbury, Vermont and Dr. Joseph Hagan, Jr., M.D. of Burlington, Vermont | ||||
| Infancy (birth-2 yrs.) | Strong bonding to other; Sense of Self, Primitive reasoning, Control of muscles | Security, Get needs fulfilled, Stability | Family - parents, grandparents, relatives | Loss of trust in others, in self |
| Early Childhood (2-4 years) | Self-control, language, begin play & fantasy life, independent movement (crawling or walking) | Stimulation from others, "child-proof" environment, limits on behavior | Family - parents, grandparents, relatives | Lack of independent sense of self (a "me"), doubt, fear |
| Middle Childhood (5-7 years) | Self-identity, sex role, beginning sense of right and wrong | Healthy role models, explanations of rules - why? | Family, neighbors, school (teachers, children) | No clear sense of who "he" is, or guilt about wants |
| Late Childhood(8-12 years) | Ability to get along with others same age, skill-building, belong to group, self-evaluation | Good learning environment; interpersonal relationships, feedback re: self | Family, neighbors, school, peer group | Sense of inferiority |
| Early Adolescence(13-17 years) | Ability to reason, strong peer group membership, initial sexual intimacy | Strong support for critical thinking processes, opportunities for independent judgment | Family, peer group, school | Problems with social acceptance or adjustment, social isolation |
| Late Adolescence(17-21 years) | Independent living, career choice, developed sense of right & wrong, ability to sustain intimacy, realistic thinking | Learning financial independence, having responsibility for choices and consequences | Peer group, school or work setting, family, community | Unclear identity, lack of trust in self, confusion |
Criterion 4 is familiar to Vermont practitioners. It is a slight change from existing law regarding adjustment to home, school and community. It provides:
The quality of the child's adjustment to the child's present housing, school and community and the potential effect of any change.The difference between this provision and old law is the required focus on the effects of change, and the quality of the status quo. Drafters of the Act considered the old language favored the status quo, while the new Act is neutral and requires consideration of change. A child might benefit from a move to a new school, or home, for example. On the other hand, it is important to know, whether the child's need for stability is being met by a positive relationship in the existing school and home environment.
Criterion 5 is new. It expresses the policy of the Act to value post divorce parental cooperation as an important factor in the child's health. It provides:
The ability and disposition of each parent to foster a positive relationship and frequent and continuing contact (of the child)* with the other parent, including physical contact, except where contact will result in harm to the child or to a parentThis criterion requires extreme caution in determining the weight to give it. It is the only criterion with its own exception. The difficulty arises because, the criterion requires an assessment of the degree to which unresolved anger motivates people. Also, the Court must, potentially, consider whether a fear of abuse is justified and outweighs the known benefits of post-divorce parental cooperation.
(*NOTE: The wordsOF THE CHILDare not in the law but are obviously required to give meaning in the context used.)
The criterion is based on social research, and the pragmatic experience of the mental health professionals on FPAC, which conclude that children of divorce who are able to maintain a healthy, loving relationship with both parents have the best opportunity to emerge from the crucible of divorce as healthy growing children. See Hetherington and Cox The Aftermath of Divorce in mother/child father/child relationships, National Association for Education of Young Children. Post-divorce parental cooperation is probably the single most important factor in a positive outcome for children. However, interspousal anger rather than cooperation is frequent. Anger between divorcing spouses is folklore. It is a frequent response to loss, and in divorce it may be fueled by abuse, rejection or abandonment. Injury to a person's self love can generate schemes to punish or retrieve the lost love object, to force repentance by an errant spouse, or to conceal sorrow by aggression. Anger may lead to extravagant feelings of one's own righteousness and an uncanny ability to detect the glaring moral faults of the ex-spouse. Many of these reactions manifests themselves by use of children as pawns (or Kings and Queens) in the parental war. Children become the focus of the intense struggles. Sometimes the hostility appears to be child neutral, but anger is manifested by acts of non-cooperation, inconsiderate action and the like directed towards the other spouse. The parent who is habitually late in picking up and delivering kids, or who refuses to drive halfway, or to engage in the many acts of accommodation necessary to rear children in the post divorce context may be acting out of a desire to humiliate, punish, or retrieve the other spouse. A parent who disparages the other to the kids, or the parent who without cause interferes with agreed upon (or court ordered) visitation rights continues the parental war.
Criterion 5, however, contains a paradox. A cooperative spouse may acquiesce in unreasonable demands, or tolerate inappropriate behavior by an angry spouse either to satisfy the criterion or in a natural attempt to make peace. Doing so, however, may violate his or her appropriate opinion of the children's best interests and do violence to his or her integrity. Acquiescence may also encourage more outrageous behavior. Conversely, resistance may lead to non-cooperation, and recrimination. Further, actual physical or mental abuse may occur.
Accordingly, the exception in the statute concerning harm to the child or parent must be given utmost attention. The following passage makes the point clearly:
Frequent contact with both parents may not be beneficial where parental conflict is intense. Hetherington found that frequent visitation complicated by appreciable conflict was correlated with poor adjustment of the children. Other authors have found children's adjustment to be impaired by parental conflict and enhanced by parental harmony. In fact, research findings suggest that the level of interparental conflict may be more central to the child's post-divorce adjustment than father absence and disruption occasioned by marital dissolution per se.Derdeyn and Scott Joint Custody, A Critical Anlysis and Appraisal, 54 Amer J. Orthophychiat 199, 204 (1984).
Harm to the child, caused by interparental conflict, is often intricately tied in with harm to a parent caused by long- standing physical and emotional abuse by the other parent. Frequent contacts between children and parents may force the abused former spouse to subject herself to a continuation and perpetuation of the abuse, which is unfair to her and likely to render her less effective as a parent. These are the reasons for the specific exception to the preference of frequent contact between children and parents.
Under this criterion the parties negotiating positions concerning visitation may be relevant. Vermont Rules of Evidence 408 barring evidence of compromise or offers of compromise unless offered for a purpose other than to establish liability, would not exclude evidence of a party's willingness to give the other party access to their child.
No law can abolish anger or evaporate abusive behavior. But this law does provide that ex-spouses who have learned to control their own destructive emotions for the benefit of the children are to be preferred. This criterion can be used as a legal stimulus to divorcing parents to control their anger for the benefit of their children.
In brief, the rule establishes a presumption in favor of
awarding sole physical responsibility to a fit parent of a young
child, who provides primary care to the child. The stated
purpose of the West Virginia rule is to eliminate bargaining over
custody, and to provide a simple but valid rule to prevent
destructive litigation. The rule looks to easily observable,
objective facts, on which to base a decision rather than on
general criteria which attempt to define the best interests
of
the child. Specifically, custody would be awarded to that fit
parent of a young child if the parent performed the following
duties:
(1) preparing and planning of meals; (2) bathing, grooming, and dressing; (3) purchasing, cleaning, and care of clothes; (4) medical care, including nursing and trips to physicians; (5) arranging for social interaction among peers after school, i.e. transporting to friends' houses or, for example, to girl or boy scout meetings; (6) arranging alternative care, i.e. babysitting, day-care, etc.; (7) putting child to bed at night, attending to child in the middle of the night, waking child in the morning; (8) disciplining, i.e. teacher general manners and toilet training; (9) educating, i.e. religious, cultural, social, etc.; and, (10) teaching elementary skills, i.e., reading, writing and arithmetic.
Rather than adopt this rule to the exclusion of all other criteria, Vermont takes the position it is one factor, among others, to consider. It joins other jurisdictions in doing so. Se e.g. Jordan v. Jordan 448 A.2d 1113 (Pa. Super Ct. 1982); Derby v. Derby, 571 P.2d 562 (Or. Ct. App. 1971).
FPAC members felt an absolute rule was flawed because although it is usually true that a parent who provides the caretaker functions also provides love, affection and guidance, that is not necessarily always true. The primary caretaker rule rests on the presumption that a person who provides this care, by reason of that fact alone, would meet the other criteria. FPAC did not want to go so far. Further, it is difficult to establish an age of a child above which the primary care factors should not be conclusive. The factors may well be appropriate for a child of 3 but not for one of 10. Finally, the child support bill, which passed concurrently with the Divorce Act, ends much of the opportunity to bargain over child support because it establishes presumptive levels of support which the parties are not free to bargain away.
Nevertheless, in many cases the underlying validity of the rule, namely that the parent who provides the care factors is the preferred parent, should lead to its being used. This is particularly true in cases involving young children whom the evidence establishes are thriving. The risk to a child by removal from the primary caretaker is great. Health professionals are particularly concerned with children ages 6 months to at least age 3. Children of these ages have shown the greatest adverse reaction to removal. Even where frequent visitation occurs, the absence of the primary caretaker is experienced by the child as a rejection. Mental health professionals also theorize, that during these early years when the child is building ties and forming bonding from which healthy emotional growth emanates, displacement of the primary caretaker may disrupt the process. See Robertson and Robertson, Young Children in Brief Separation. 26 The Psychoanalytic Study of the Child. 264 (1971) and Kagan, Emergent Themes in Human Development, 64 Am. Scientist 186 (1976).
Criterion 7 is a carry over from the Uniform Marriage and Divorce Act. it directs the court to consider:
the relationship of the child with any other person who may significantly affect the child.Siblings, or loves adults other than parents, such as stepparents, grandparents or long-term child care providers may by vital in a child's life. The court must consider whether placement of a child where these relationships can continue is important to the child's healthy growth.
The preference of a child is not one of the criteria for determining parental rights and responsibilities. Although there will be situations where a child's preference will make a difference in allocating RAR, the proffered evidence must be relevant to one of the statutory criteria.
Generally it is in a child's best interest to stay out of the courtroom. However, it has not been unusual to see children testifying in Vermont courts. The manner in which their testimony is received varies with the judges and the attorneys involved. Prior to the enactment of 15 V.S.A. § 594, testimony of children has been governed by 15 V.S.A. § 652(b) which read:
The court shall not consider evidence relating to an issue of custody except such as is received in open court pursuant to the rules of evidence.
Evidence has often been taken in chambers, however, with only the attorneys and the court present. The only prerequisite to children's testimony in any proceeding has been that the child is competent to the extent of knowing the difference between what is true and false and is sworn to tell the truth. The law does not require administration of the oath, as long as the purpose behind the oath is accomplished. In re: M.W.R. and J.L.R., 143 Vt. 6 (1983). An accurate assessment of a child witness involves more than a judgment whether he or she has the ability to tell right from wrong. Children whose parents are in the process of separation and divorce are subjected to enormous stresses which influence their decision making capacities and make their testimony less reliable. In addition, children, in forming their opinions, must often distinguish between two sets of information from their opposing parents. The child has no independent ability to evaluate the reliability of the information received. Thus children for the most part lack the three necessary ingredients of competency: the abilities to be informed, to exercise voluntary expression, and to be consistent. See Daniel C. Schuman, M.D. The Unreliability of Children's Expression of Preference in Domestic Relations Litigation: A Psychiatric Approach, Mass. L. Rev., Spring (1984), 14-16.
The inherent unreliability of children's testimony in family litigation matters, as well as potential form to a child witness, has been given extensive attention. There are many factors at play in the minds of children when they are forced into the position of comparing their parents. The most obvious conflicting emotions involve the fear of losing the love of one parent, the fear of making a parent lonely, the guilt evoked by expressing a preference, and the reaction to promises made to the child by parents. Children will say different things at different times depending on which of the many emotions are at play. See J. S. Wallerstein and J. B. Kelley, Surviving the Breakup, 314-315; Stanley S. Clawar, Why Children Say What they Say, 6 Family Advocate No. 2 at 25 (Fall 1983). As a consequence, a child who testifies to a preference may experience severe emotional stress in rejecting one parent, or be fearful of the power he or she apparently has over adult lives.
As of 1981, approximately eighteen state custody statutes made the preference of the child, a factor to be considered. Vermont's prior law did not, even though children's preference was a statutory factor in the Uniform Marriage and Divorce Act. This law continues the position that in most instances children are best served when parents are making the judgments on their behalf. The new statute, therefore, mandates that the Court, before allowing any child to testify on issues of child support and the allocation of RAR, must appoint an attorney for the child and make the following specific findings:
(1) the child's testimony is necessary to assist the court in determining the issue before it; (2) the probative value of the child's testimony outweighs the potential detriment to the child; (3) the evidence sought is not reasonably available by any other means.
If the court makes all the prerequisite findings, the statute provides that the examination of the child may be removed from open court and conducted in chambers. The court also has discretion with respect to the persons whose presence will be allowed while the child testifies. Under the House version of the statute the court did not have discretion to remove the attorneys of the parties. The conference committee, however, made it theoretically possible for the court to talk to the child with no one else present. It is unclear whether parties to a divorce have a constitutional right to know what evidence is being presented in cases where physical control of their children is being determined.
This new statute will make drastic changes in the way issues relating to the physical control of children of divorce are decided. In addition to presenting evidence in accordance with factors fashioned by mental health criteria rather than the allegations by the opposing parties, attorneys will be required to give careful thought to the practical implications of the agreements drafted for the allocation of parental rights and responsibilities. With the adoption of the new child support and maintenance formula the use of children as bargaining chips should be substantially diminished, and if all the variables work as anticipated, children will be the better for it.