Swords in the Hands of Babes: Rethinking Custody Interviews after Troxel

As King Solomon understood, custody disputes ordinarily allow no easy answers. Increasingly, legal actors have begun to rely on the child's custodial preference as a proxy for her best interests. In an effort to ascertain this preference without subjecting the child to the trauma of courtroom testimony, many states authorize courts to interview children in camera. Good intentions notwithstanding, these custody interviews pose considerable risk to children, to their parents, and to the State's best-interests quest. These risks increase dramatically when in-camera interviews serve as tools for searching out preferences that have not been publicly volunteered; when children's preferences are given very weighty or dispositive effect; and when the state denies parents an opportunity to challenge the accuracy and reasonableness of their children's statements. The U.S. Supreme Court's decision in Troxel v. Granville increases the urgency of a reassessment of these custody practices. Troxel's reaffirmation of the significance and breadth of parental rights strengthens parents' claim that procedural due process entitles them to access their children's in-camera statements. While such parental access reduces information risks, it exacerbates process risks for children, and counsels careful attention to the context and consequence of preference interviews. This Article briefly surveys preference practices, considers their costs and benefits, and urges a retreat from preference-driven interviews and preference-determinative custody decisions. The Article also considers parental demands for access to children's in-camera statements, and concludes that although such parental access increases risks for children, procedural due process favors it. Finally, the Article suggests that the law's increasing willingness to delegate the custody decision to children stems partly from failure of the open-ended best-interests custody model, and advocates substitution of a modified version of the ALI's more determinant approximation standard. This modified ALI model would allow a reformulation of in-camera interviews as opportunities for children to engage in free narrative, more fully empowering their speech while freeing them from the burdens of painful choice.