APRIL 8, 2016
A scene in the movie “Catch Me If You Can” resonates with people who grew up in divorced homes. Sixteen-year-old Frank Abagnale Jr., played by Leonardo DiCaprio, learns that his parents’ marriage has hit the skids and they ask him to write down where he wants to live. “Just put the name there,” the adults tell the child, “It’s as simple as that. Don’t look so scared.” Horrified, Frank runs away rather than exercise this child’s version of “Sophie’s Choice.”
Even more horrifying is that California is posed to make this scene a reality for children 10 years of age or older.
This month, the Legislature will consider AB 2098, a bill to amend the Family Code that governs custody disputes. The proposed law will allow parents to drag their fourth-grade children to the courthouse to tell the judge where they want to live. The court must give the child an audience unless it can state its reasons for determining that doing so is not in the child’s best interests.
Giving children a strong voice in custody decisions seems enlightened. Champions of children’s rights speak of “empowering” children. Children crying out for protection from abuse must be heard. But there is a world of difference between giving children a voice and giving children a choice that they are ill-prepared to shoulder.
Children in custody battles pay a price for the privilege of speaking to the judge. It positions them to be lobbied, intimidated, programmed, and coerced by a parent intent on gaining advantage in the litigation regardless of the impact on the child. Children’s stated preferences become up for grabs by whichever parent has the most influence on — and the least compunction about — exploiting them.
In our effort to protect children from physical and sexual abuse, we cannot ignore the hidden suffering of children who are manipulated to take sides in their parent’s disputes.
What does it take for a 10-year-old to say what Mom or Dad wants her to say? Unlimited TV time and ice cream? No bedtime or vegetables? New toys on demand? Threats of punishment? How many fourth-graders have the maturity to understand the long-range implications of taking a public stand against a parent? How many have the fortitude to withstand the pressures, promises, and threats aimed at securing their allegiance?
Texas tried something similar years ago when its legislature required judges to consider affidavits of preference signed by children 10 and older. The experiment was a short-lived disaster. In many cases, a psychologically abusive parent cajoled and required the children to sign the affidavit in the lawyer’s office. In other cases, the parents presented dueling affidavits.

The courts learned that it does not take much for children this age to change their mind from week to week depending on which parent they are with at the time.
Children who advocate for one parent against the other, and whose claims at the time of divorce succeed in persuading a court to allow them to reject a parent, suffer in later years. They feel guilty for having turned on a parent. They are angry that they were exploited to advance a vindictive parent’s agenda and manipulated into playing a major role in engineering their own life’s tragedy. They are perplexed that under extreme emotional duress at such a young age, they were vested with the power to make a choice with devastating long-term consequences.
We have better ways to determine children’s needs. Court-appointed evaluators and minor’s counsel bring the child’s voice and needs into the equation without asking children to choose one parent over the other. This spares children from being the linchpin in their parents’ quest to win custody and the child support that goes along with it.
Family law judges may think they are hearing a 10-year-old’s voice. But the voice may be delivering a script written by another, or reflect an attempt to appease a psychologically abusive parent who demands the children’s allegiance.
Fourth-graders decide what game they want to play. They should not be deciding which parent wins in court.
Dr Warshak, a scholar on divorce and custody, is a clinical professor of psychiatry at the University of Texas Southwestern Medical Center in Dallas and author of “Divorce Poison: How To Protect Your Family From Bad-mouthing and Brainwashing.”