As an attorney, I have been involved in countless parenting disputes, mediations and evaluations in which the issue of a child’s preference is considered, or ruled out, as a factor. The Minnesota custody statute sets forth the child’s preference as a factor to be considered, “if the court deems the child to be of sufficient age to express preference.” See Minn. Stat. Section 518.17, subs. 1(a)(2).
For many custody professionals, the issue is not so much the child’s preference as it is the child’s perspective. The notion of a preference contemplates that the child is choosing between the parents. That is one of the worst things that anyone could compel a child to do, regardless of whether it is the parent, the family court judge, an attorney, or a custody professional pushing for the child to do so. Moreover, for every instance in which the child’s bona fide preference has a true bearing on the determination of the parenting plan, there are many instances in which a parent – maybe both parents – have a mistaken belief that the child (a) genuinely has a preference and (b) the child’s preference should be a determining factor in the parenting plan.
Child-inclusive mediation is designed to address head-on the child’s perspective. In so doing, the child’s preference, if it has a true bearing on the determination of the parenting plan, can be factored in. The model provides for the involvement of a mediator and a child consultant. The child has contact only with the child consultant, not with the mediator, and certainly not with the family court or either parent’s attorney. What the child consultant learns from his or her meeting with the child is then shared with the parents and the mediator so that the child’s perspective can be given proper attention as the parents attempt to resolve parenting disputes.
In December 2013, I took mediator training for child-inclusive mediation, the first training of its kind in Minnesota. I am eager to pursue child-inclusive mediation in 2014 and in future years, either as a mediator or as an attorney representing one of the parents. The process holds a great deal of promise for properly balancing the interest of keeping children out of parenting disputes, but allowing children to have a voice in the parenting plan that emerges from those disputes.