In the celebrity world, the latest divorce to hit the tabloid headlines is that of Katie Holmes from Tom Cruise. It is interesting to note the place where the divorce application was filed.

Katie Holmes filed it in New York because the courts there are more inclined to award the sole care and custody to the mother, according to newspapers covering this story.

Before reaching a settlement, Tom Cruise showed interest to file an application for divorce in California because the courts in the sunny state favour joint care and custody. However, since there are already pending divorce proceedings in New York, he was unable to file a divorce application in California.

This divorce legal battle pitting New York against California all boils down to one thing: the care and custody of their child, six-year-old Suri. Is it fair that courts in one state favour joint custody whereas those in the other state favour sole custody? Shouldn’t cases be considered on a case by case basis?

That is, courts should not award joint or sole care and custody in an arbitrary way.

Joint care and custody should always be promoted because, theoretically, when the parents are still together, the care and custody of their children is automatically joint. It is only when they start separation or divorce proceedings that the issue as to whether the care and custody should be joint or not crops up.

Although the marriage is over, the relationship between parents and children should not be damaged. However, in such circumstances, the warring spouses would want to eliminate any communication between them, an aim that cannot be achieved if there is to be joint care and custody.

There can be a number of reasons – some of which may be justified, such as domestic violence, alcoholism, neglect, immaturity, irresponsibility etc. – for wanting to sever all communication. However, at times, when there are no reasonable grounds for which sole custody is not justified, then communication is key to maintain a smooth relationship between the parents and the children.

When joint custody is not ideally possible, then sole custody is granted. Here, all decisions pertaining to children are to be decided solely by the parent who is awarded care and custody.

Do children actually have a say in such matters? That is, are children consulted as to which parent should have their primary care and custody? Or, perhaps, is it too much of a burden to put on the fragile shoulders of children? Is it fair to ask children to choose?

There are times when children can be subjected to “brainwashing” by the other parent, thus, effectively, the child’s decision will be compromised.

Are children’s decisions binding or are children merely heard but not listened to?

First of all, children should not all be given the same label. Children are persons in their own right and their reasoned opinion varies with each child. More than on age, this depends on whether such child has sufficient understanding and maturity to understand the complex and delicate situation the family is in. This might seem too much for a child to consider.

In England the concept of sufficient understanding and maturity – also known as the Gillick Competence – is something which is applied with regard to medical decisions involving children under 16 years of age. Medical decisions are important and are not less important than decisions concerning the family.

One, however, must differentiate between “care and custody” and “primary carer” because, although both parents may have joint care and custody, the child will live primarily with one parent while the other parent will have visitation sessions.

The child is usually asked by the judge directly or through a children’s advocate about these delicate issues. However, if a child says one thing, it does not mean that the court must per force do as the child says.

The court also has to take into consideration the child’s best interests, which are paramount. Sometimes, the child’s decision will not be in his/her best interests. Nevertheless, the notion of best interests should not be abused and used arbitrarily to override the child’s opinion. Such opinion, according to the United Nations Convention on the Rights of the Child, should be given due consideration according to the child’s maturity.

Therefore, should a very young child be made to choose between parents? Rather than being made to choose, a child ought to be asked in a professional way to express his/her free thoughts and opinion.

I believe it would be more draconian to simply not allow the child to air his/her views about such delicate issues, which are of direct concern to him/her, than to allow that child to give his/her point of view using the most professional methods and tact in such delicate situations.

Dr Mangion is a lawyer and a published author with a special interest in family and child law.

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