INTRODUCTION

A child's perspective in a private custody case may differ from that of parents or other professionals. Most nations recognise the importance of a judge seeking the views of the child who is most impacted by the decision. The United States, however, lacks a uniform approach to when, how or if a child can participate. As private custody cases are heard in state, not federal, courts, the laws and policies vary widely in the 50 states, the District of Columbia, and the territories. Whether, and how, a child's voice is heard depends upon if the custody case arises in the context of an initial action, such as a divorce, paternity or adoption case, or in the context of a modification of an existing order, such as a relocation case.

Historically, judges did not include the child's voice in private custody cases. Presumptions for one of the parents and fitness played major roles. The 1973 Uniform Marriage and Divorce Act listed the child's voice as one of five factors to consider. It has only been since the mid-1990s, however, with the push for appointing a lawyer for a child by child advocacy groups that legislatures and courts have begun a serious dialogue about including the child's views in custody decisions. Concerns still exist about the capacity of a child to express a view, the need to insulate the child from parental conflict, and the underlying assumption, not always valid, that parents will act in their child's best interest. There is, however, a growing recognition of children's rights both in the United States and around the world.

Three international treaties provide opportunities to hear the child's perspective: the United Nations Convention on the Rights of the Child (UNCRC), the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Abduction Convention) and the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996 Hague Child Protection Convention). Of these three, the United States has ratified only the Hague Abduction Convention.

The United States census documents around 380 million people; 72 million of them are children. The actual number of cases involving the custody of children, however, is more difficult to ascertain.