What to do when you are embroiled in custody litigation and you want your child’s opinion to be considered? In a previous blog post on our website, I discussed the circumstances that might result in a Court allowing a child to testify either in Court or in the Judge’s chambers. As I mentioned in that post, a child normally needs to be at least 10 to 12 years old before that is an option. What does a custody litigant do if they have a child younger than 10 and want the child’s opinions and preferences to be considered? Wake and Durham County Family Courts participate in a program administered by Legal Aid of North Carolina called “The Child’s Advocate.” The Child’s Advocate provides a lawyer to represent the child or children in Court and to express the children’s preferences to the Judge. The Child’s Advocate (TCA) is appointed by a Judge in response to a motion filed by one of the parties’ attorneys, and the TCA generally serves as attorney for the child without cost to the parents. Recently, the Wake County Family Court issued a Memo to attorneys describing some new restrictions that are likely to make it slightly more difficult to secure the appointment of a TCA. Going forward, the TCA will only be appointed in cases where the child is at least 7 years old (the threshold for appointment had previously been 5 years old). Additionally, in order for the Court to approve the request for appointment, the custody case must involve at least one of the following:
1. Allegations or findings of family violence (domestic violence and/or child physical, sexual, or psychological abuse);
2. Substance abuse or mental instability of a parent;
3. Special needs of a child requiring additional investigation and advocacy (mental health, medical, educational, etc.);
4. Child resisting/refusing visitation with a parent;
5. Potential relocation of a parent
6. Child’s gender identity or sexual orientation is a contested issue;
7. An “Other compelling reason” that must be specifically articulated and must satisfy the Court that it rises to the level of importance that would necessitate the involvement of the TCA.
The Wake County Family Court memo explicitly states that a high level of acrimony between the parents is NOT sufficient to warrant the appointment of the TCA, so that is not a factor that will satisfy the miscellaneous “other” factor mentioned above. The Child’s Advocate can be an extremely useful avenue for allowing the Court to consider the preferences of younger children in custody cases. It is important for litigants to understand when and under what circumstances a Court will be willing to consider the involvement of the TCA.