Season 1 Episode 10: The Child’s Advocate

Note: Our Podcast, “A Year and a Day: Divorce Without Destruction”, was created to be heard, but we provide text transcripts to make this information accessible to everyone. All transcripts on our website are created using a combination of speech recognition software and human transcribers and could contain errors.

Jaime Davis: Welcome to Episode 10 of ‘A Year and a Day’. I’m your host, Jaime Davis. In Episode 9 I discussed the topic of family law appeals with my colleague and fellow family law attorney Jonathan Melton. In this episode, I will have the pleasure of speaking with attorney Suzanne Chester. Suzanne’s career in the law has focused on providing access to the courts for the poor and giving a voice to the disenfranchised. After graduating with honors from USC School of Law in 1995, Suzanne spent three years working at North Carolina Prisoner Legal Services, focusing on improving access to health care for women prisoners. From 1998 until 2012, Suzanne supervised the Domestic Violence and Family Law Unit at the Raleigh Office of Legal Aid and represented clients in family law, housing and consumer cases. Today, Suzanne and I will be discussing her work with a very important project of Legal Aid of North Carolina, known as ‘the Child’s Advocate’. Suzanne has been the director of the Child’s Advocate since 2014, and I began volunteering with the child’s advocate earlier this year. Welcome, Suzanne.

Suzanne Chester: Thank you, Jaime, it’s a pleasure to be here.

Jaime Davis: So to start off, what is The Child’s Advocate?

Suzanne Chester: The Child’s Advocate is a special project of Legal Aid of North Carolina. It was originally started by Sally Scherer in 2008. And in 2014, Legal Aid took it over. The purpose of The Child’s Advocate is to provide attorneys for children in private family law custody cases where we are appointed to represent some of the children in these cases.

Jaime Davis: Will The Child’s Advocate be determining what is best for the child?

Suzanne Chester: That’s a really good question. No, we won’t be. Our job is to bring the child’s wishes and position to the forefront, to advocate for what the child wants and really primarily to give a voice to the child and some input into these huge decisions that have a tremendous effect on children for the rest of their lives. Decisions about which parent they’re going to live with. Primarily decisions about which parent they’re going to be able to visit with and all the other things that get included in the custody order, as you know, from practicing family law yourself. These decisions have a huge effect on everybody in the family. But probably most of all on the child that the litigation is centered around.

Jaime Davis: Absolutely. And so often and his family law cases, the judge never sees or even talks to the child. Maybe a picture of the child with the family is introduced as an exhibit in court. But really, that is the extent of the judge’s involvement and even seeing the child.

Suzanne Chester: Exactly. And that’s what we try to address through being the child’s attorney. We focus on representing what the child wants and getting information that’s reliable in front of the judge, getting the child’s wishes in front of the judge. I think in a way, having an attorney for the child is a win win for everybody. It means the judge has access to current and reliable information that’s actually relevant because it’s the judge’s job to determine what’s in the best interests of the child. It’s our job to advocate for what the child wants. We investigate our cases very thoroughly. We talk to the child multiple times, just like you do with your dog clients. We talk with the child’s therapist. If the child has a therapist, and a lot of the children we work with do, sometimes we need to talk with the child’s teachers. We’ll obviously talk with each of the parents, although we don’t represent the parents, we do talk with each of them on any number of occasions. But we want to get all the information that there is out there about the child and about why the court should hear from the child and hear what the child’s wishes are. And once we gather all of that information, we work with our child clients and we figure out what position the child wants to take in the litigation. And then we try to settle our cases. A child, I think maybe 80 percent, 75 to 80 percent of our cases do settle. And if it doesn’t settle, then we go to court and we represent the child, just like you represent your adult client. The big difference is you have a client sitting there beside you in the courtroom. We’re there and we’re advocating as an attorney. But we don’t have the child with us, typically.

Jaime Davis: And so in these cases where you are the child’s advocate and you are representing the child, will the child have to testify?

Suzanne Chester: No. In most of our cases, I would say the vast majority, the child never comes into the courtroom or never goes into the judge’s chambers. But there are exceptions and there are important exceptions. You know, some children really want to talk with the judge. And I think there’s a there’s a misconception that by keeping the child away from the courthouse, we somehow protect them from the litigation. All of the children that we represent, they know all too well what’s going on, and it’s very, very stressful for them. Some of them find it empowering to actually have their input directly with the judge. And if that happens, then, or if our child client wants that, we will talk with the child at length to make sure that is something that he or she actually really wants. We make sure that whatever the child would want to tell the judge is something that’s relevant to the custody determination and then we’ll prepare our client before she or he actually talks with the judge. And I think in every case we’ve ever had we’ve always been able to have the child talk with the judge in the judge’s office, which is right beside the courtroom, as you know, without the parents present. Sometimes the attorneys are present. But the parents would not be present.

Jaime Davis: And for that to happen, that requires the consent of both the mom and the dad, right?

Suzanne Chester: It does. It does. The judge will ask the attorneys or if the parents don’t have attorneys they have to both consent before the child can testify in a separate room, because since the parents don’t get to actually hear what’s said, they have to consent to allow it to happen.

Jaime Davis: And so in your role counseling the child and trying to determine what it is he or she would like to have happen. What do you do if you figure out that what the child wants is something that is not very likely to happen in court?

Suzanne Chester: That is a great question and it’s one that does arise sometimes. I don’t think it arises frequently, but it certainly has a reason. I guess we do a number of things. The first thing we do is we talk with the child about the likelihood of what the child wants in that situation actually being granted by the judge. But more importantly, let’s take an example. Let’s say the child wants to primarily live or maybe 50/50 with a parent who has some problems with parenting. For example, a parent who may be allowing the child to be unsupervised on all types of social media at a very young age or a parent who may have perpetrated domestic violence. If the child wants to spend a significant amount of time with that parent, what we will do is really try to focus on getting that parent to accept services. For example, in a domestic violence situation, we would say to the parent, your child really wants to spend more time with you if you don’t address the domestic violence through some type of counseling it’s very unlikely that the judge is going to do this. And so we really encourage the parent to do that, because that really helps us to achieve what the child wants.

So when we go into court, we advocate to the judge that the parent that the child wants to spend time with is ordered to receive the services that he or she needs in the case that I just referred to and might be to work with a therapist or counseling about domestic violence or go to a parenting class with Safe Child. Whatever the particular service is that we know the court is going to want to happen, we will advocate for it and we’ll advocate for the child to be able to spend a significant amount of time with that parent as well.

Jaime Davis: Do you find in your experience that the parents are generally receptive to these recommendations, or do you find that more times than not, you have to have the judge order it?

Suzanne Chester: I think more times than not, we have to have the judge order it. Yes. And that can be frustrating. But yes, more times than not, the judge has to order it.

Jaime Davis: So if a parent involved in a custody case thinks his or her child can benefit from having an advocate, how would the parent go about getting a child advocate appointed in the case?

Suzanne Chester: If the parent is represented by an attorney, an attorney can access a motion to have us appointed through our office or can draft a motion of their own to have the child’s advocate appointed. Either way would be fine. Right now we’re in the process of setting up a system where we’ll make these forms more readily available to pro se parents. We do represent a lot of children where the parents are pro se, but that’s typically when the judge decides the child needs an advocate as opposed to. There is no attorney to request it, so it’s usually coming from the judge wanting it.

Jaime Davis: So the only way to have a child advocate appointed is formally through a motion with the court. Is that right?

Suzanne Chester: Yes. Unless the judge decides herself that she wants to appoint us without any motion pending.

Jaime Davis: Gotcha. OK. Once the child advocate is appointed, what is the process? How do you get started?

Suzanne Chester: Well, our appointment order tells each parent that they need to call our office within a certain number of days in order to do intake. And basically we give intake forms to each of the parents to complete so that we have some information about the child to start with, things like the school the child attends, doctors, therapists, if there’s been any contact with CPS in the past with Child Protective Services, if there’s been any domestic violence, protective orders obtained by either parent, if the child has any special needs. We want to have all of that information up front so we know where to focus our investigation and who we need to talk to. After we do that, we will depending on the age of the child, we may talk with the parents first. If it’s a young child, that would be a child over the age of five, but may be under the age of eight, then we would typically talk with the parent first to try to get a sense of what their perspective on the custody dispute is. We’ll talk to each of the parents and then we’ll arrange a time to talk to meet with the child. And after that initial meeting, we’ll have multiple more meetings with the child or the children.

So at that point, we would have spoken with the parents, we would have spoken and started meeting with the child on a regular basis. If the child has a therapist we will contact the therapist and speak with the therapist. With younger children it can be difficult to figure out, you know, what their wishes or what their needs are. And so working with a therapist really helps. In addition to a therapist, occasionally we may need to speak with teachers. And we will do that. We do need to get releases from the parents, you know, to allow us to do these things. Our appointment order requires that the parents sign releases so that we can get to talk to the people who are heavily involved in the child’s life and have information, you know, that the judge surely is likely to want to hear about.

Jaime Davis: And this is a very basic question. But logistically speaking, when you have a child client, where do these meetings happen? Do they happen in your office? Do you go to the child’s home? How does that work?

Suzanne Chester: It depends. If it’s a young child and it’s the first meeting we’ll often times meet the child at at a public place like a restaurant, a McDonald’s with the parent with them, so that the child gets used, you know, gets to know who we are before they’re suddenly having to talk to us on their own. After that first meeting, we will ask the parent or one way one way we do it is we ask the parent to bring the child to our office. Now, while we’re talking with the child, we ask the parent if they can come back in about an hour. We don’t like the parents to stay in the office when we’re talking with the child, because we want our clients to feel like they really can talk with us in confidence. And we don’t want our clients to feel like their parents are potentially overhearing what’s been said. We have a small office space. And so sometimes we will do it in our office. Other times, we might go to a park with the child. We might pick them up after school from their home, bring them to a park, talk with them there. It varies a lot with the age of the child or with with what seems to be their interests and how easy they are to talk to.

Jaime Davis: And I’m sure this probably depends on the age of the child. But are there certain things that you do to try to make the child feel more comfortable speaking with you?

Suzanne Chester: There are. Especially well, actually, I would say at every meeting with the child we will do that. But especially with younger children. We have Play-Doh at our office, we have puzzles, easy, you know, relatively easy puzzles for children to do, activity books, because we’ve really noticed that children tend to talk a lot more when they’re doing something with their hands. You have children. You probably have seen the same thing.

Jaime Davis: Absolutely. I bet the fidget spinners are probably a big hit as well.

Suzanne Chester: They are. They are. It really seems to allow the child to be less self-conscious about what they’re saying because they don’t need to maintain eye contact in the same way. They can just be working on their activity and chatting away with us.

Jaime Davis: Right. Because I’m sure that’s a very uncomfortable subject that they’re having to talk about anyway. I’m sure there’s a certain amount of apprehension or stress about having to deal with courts and judges, not to mention, you know, hey, mom and dad are fighting over me and about where I’m going to live. So I’m sure that’s really tough for them.

Suzanne Chester: For some of them, it’s very, very tough. I think all of them are aware and are affected by that, by the litigation. Some of them are very self-conscious or somewhat fearful about talking, and then others are really sick of talking to different people. They’ve had to deal with so many professionals as a result of some form of conflict or dysfunction or violence in the family that they’re, you know, at the beginning they may see us as just another professional. Typically, though, once they realize that we are there to advocate for what they want, that’s what really makes a difference.

Jaime Davis: How do you explain that role to the child? How do you explain the concept of, hey, I’m your lawyer?

Suzanne Chester: It kind of depends on the age of the child. With a child of about eight years old, I would talk with a child about being on the child’s team. That seems to be something that, you know, obviously children are very familiar with. And I talk about the child and myself being a team together and that I have rules that anything the child tells me, I keep to myself. I don’t tell anybody else about what she tells me or he tells me unless the child wants me to. And I also tell the child that the judge wants to know how they feel about some of the different issues that are in the case. I’ll use, you know, more child centered language. I’ll let them know that the judge wants to know how they feel about visiting with mom. Visiting with dad. Living with mom. Living with dad. And are there specific things that the child would like the judge to know? And, you know, children around the age of 8 understand that kind of explanation and seem to catch on pretty quickly that what I say, what they say to me is not gonna be shared with their parents. So to the extent that we can emphasize that, that makes them trust us just the way your clients trust you knowing, you know, that what they tell you is not going to be divulged to anybody else.

Jaime Davis: So I think that’s a point that our listeners would probably like to have a better understanding of. So if they have a child advocate in their custody case, is that advocate allowed to talk to mom and dad about what the child has said?

Suzanne Chester: Not unless the child specifically tells us it’s OK to share that. And I oftentimes ask my clients, “is it okay if I let your mom know that or if I let your dad know that?” And they will let me know. Sometimes it’s fine. I would say most of the time it’s fine. And then some of the time it’s not. I do explain to them that if you want me, you know, to be really it to be able to really advocate for what you want I’m going to need to provide some reasons for it. And so we talk about, you know, is there some way of telling either your mommy or dad or both of them something that you would feel safe and comfortable with? It may be a partial, you know, part of what they’ve said is fine to be shared, but we’re very careful about that so that there is no sense with a child that they are betrayed by a confidence being shared with a parent.

And sometimes that’s hard for the parents because, you know, sometimes the parents want to know, what is my child been telling you?

Jaime Davis: Sure.

Suzanne Chester: I think that’s probably one of the challenges of the child’s advocate, is some parents want to have more control over the process, which is understandable. But if the child, you know, is appointed an attorney, it’s for a reason and that confidentiality is crucial.

Jaime Davis: Well, so let’s talk about some of the reasons why a child advocate might be appointed. And what types of cases do you think that having a child advocate is most helpful?

Suzanne Chester: Let me first answer about your question about what types of cases. I would say almost all of the cases where we’re appointed have a number of different factors in common. They all share the fact that there’s chronic conflict between the parents and parents are having great difficulty communicating with each other.

Jaime Davis: So we’re talking about high conflict custody cases here, is that right?

Suzanne Chester: They are high conflict. And sometimes the conflict is coming from both parents. Sometimes the conflict appears to be caused more by one parent, but it’s resulting in a situation which the courts refer to as high conflict. The other typical characteristics of our cases could be one or more of the following. There may be a child with special needs. There may have been allegations or a history of findings of domestic violence in the past that could have been. There could be current allegations of child abuse. There could be an ongoing child protective services investigation. There may be substance abuse issues, although they’re less common. There may be some untreated mental health issues with the parents or there may be mental health needs on the part of the child that aren’t getting properly met. It may be because the parents are in disagreement about it. I would say they are the typical character, the typical factors that we see in the cases were appointed to.

I think your second question was in which cases do you think that it’s helpful to have a child’s advocate?

Jaime Davis: That’s right.

Suzanne Chester: I think a child’s advocate is particularly helpful in cases where the child may have suffered some kind of traumatic experience, but it’s really not clear. In the case, whether that is the case or whether that has happened or not, and that may be cases where there’s allegations of domestic violence or of child abuse and also cases where there are allegations of parental alienation, we see that very frequently in the same cases as where there are allegations of domestic violence or child abuse. The other parent makes allegations of parental alienation. I think having a child’s advocate helps to bring information to the court’s attention that the court may otherwise not know yet, because a lot of these issues, as you know, are very difficult to actually prove in court, especially when you don’t have the child in court able to tell their own story. Having an advocate who can help to bring that voice to the attention of the court, where it’s not tainted by the effect of, or it’s certainly less tainted by the effect of either parent.

Jaime Davis: I was just thinking that there may be cases where neither parent, for example, would want the child’s therapist to testify because therapists may not say something helpful for either one of them. But really, you know, that’s one way to get the child’s voice to be heard is to have his or her therapist come in and testify. So I could see in a case like that, you know, having an advocate would be very beneficial for the child.

Suzanne Chester: That’s a really great point, because although we don’t have the child, you know, testify in court, we do bring in witnesses like a child’s therapist as a way to get the child’s interests in front of the court and the child’s voice. And that can be very helpful. I will say that our judges are very cautious and thankfully so are very cautious about not letting the therapist divulge something that might cause a breach of trust between the child and the therapist. But it can be a very good way of getting an issue in front of the judge that wouldn’t otherwise be brought to the attention of the judge. Because maybe neither parent wants to bring the therapist in. And as you know, it can be complicated bringing in professional witnesses.

Jaime Davis: Absolutely. Well, if there are lawyers out there listening who would like to become involved with The Child’s Advocate and to volunteer their time, how would they go about doing that?

Suzanne Chester: We love having volunteer attorneys volunteering their time. We have a lot of volunteers in the Wake County Bar. And we do provide a training and we enjoy, you know, providing any guidance after that. So if you are interested, if you would call the child’s advocate 919-747-8498 and leave a message or if somebody answers then let them know you’re interested in volunteering and we will most definitely follow up.

Jaime Davis: Suzanne, thank you so much for joining me today and for sharing this very important information about The Child’s Advocate with us.

Suzanne Chester: Well, thank you for having me.

Jaime Davis: I hope you all enjoyed this episode of ‘A Year and a Day’. If you have any suggestions for future episodes, I would love to hear from you. You can e-mail me at jdavis@divorceistough.com. If you like what you heard today, please leave us the review on i-Tunes. As a reminder, while in my role as a lawyer, my job is to get folks legal advice. The purpose of this podcast is not to do that. This podcast is for general informational purposes only, should not be used as legal advice and is specific to the law in North Carolina. If you have questions before you take any action, you should consult with a lawyer who is licensed in your state.

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