In today’s episode of Children First Family Law, Krista welcomes retired New York Judge, Peggy Walsh, who brings decades of experience from both the Family and Supreme Courts. Judge Walsh unpacks how New York’s family law system centers children’s voices in custody cases and what the rest of the country can learn from it.
Krista and Judge Walsh explore how attorneys for children play an active role in advocating for a child’s stated preferences, even when they differ from best interest arguments. They also compare New York’s court structure with Colorado’s, explore trauma-informed judicial practices, and reflect on how systems either empower or silence young voices. Judge Walsh shares how she approached in-camera interviews with children and how her bench experience now informs her work as a coach for co-parents navigating conflict.
When a child tells their attorney what they want, that’s not just testimony. It’s a window into what makes sense for that child’s life.
In this episode, you will hear:
- Child attorneys in New York reflect what the child wants, not what adults believe is best
- Best interest and expressed interest often overlap, but not always
- New York courts offer every child legal representation at no cost
- Judges rely on in-camera interviews to hear from children directly
- Ethical representation includes guiding children without overriding them
- Professionalism in family court matters more than persuasion
- Trauma-informed courts reduce harm during high-conflict litigation
- Courts trust parents to decide, and judges step in only when needed
- Kids in the middle of conflict often show internal distress
- Co-parenting coaching offers an alternative to repeated litigation
Resources from this Episode
www.childrenfirstfamilylaw.com
All states have different laws; be sure you are checking out your state laws specifically surrounding divorce. Krista is a licensed attorney in Colorado and Wyoming but is not providing through this podcast legal advice. Please be sure to seek independent legal counsel in your area for your specific situation.
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Episode Credits
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The Child’s Voice vs. The Child’s Best Interest: Lessons from New York with Judge Peggy Walsh Podcast Transcript
Peggy Walsh 00:00
I love our system, because the child is a great source of information about the child. So when the attorney says, Well, look, here’s what’s going on, and doesn’t say it from the attorney’s point of view, but says it from the child’s point of view, that is an enormous amount of information for the person who’s making a decision about what should happen with time to that child. Basically, what’s going to happen to this kid. It is great to know what the kid thinks should happen. So I just really appreciate that. And there are kids attorneys who really kind of maintain, look, this is what my kid says, is what my client says. But I’m just like, No, don’t. Don’t do that. Just tell me what your client wants, and everybody else is going to chime in about what they think is right for your client. But what does your client say? And you know, it’s just a great source of information, I think.
Intro/Outro 00:57
Welcome to the Children First Family Law podcast. Our host, Krista Nash, is an attorney, mediator, a parenting coordinator, and child advocate with a heart to facilitate conversations about how to help children flourish amidst the broken area of family law. As a child advocate in demand for her expertise throughout Colorado and as a speaker on these issues at a national level, Krista is passionate about facilitating and creatively finding solutions to approach family law matters in a way that truly focuses on the best interests of kids. Please remember this podcast is provided to you for information purposes only. No one on this podcast is representing you or giving you legal advice. As always, please enjoy this episode and be sure to like, subscribe and share the podcast with others you think would benefit from this content.
Krista Nash 01:46
Hi everybody. Welcome to today’s episode of the podcast. I’m really happy to have with us the honorable retired Peggy Walsh, who was a long standing judge in New York, now lives in Florida, but has a lot to share with us, because she has worked in so many different aspects of family law and fronting the issues that children face, especially so thanks for being here with me today.
Peggy Walsh 02:08
Oh, I’m so happy to be here. I really enjoy your podcast. So Thanks, Krista!
Krista Nash 02:12
Thank you so much. Well, we did a little general intro audio before in terms of giving your background, but if you can give us a little sense of your journey that you know from I know you told me you initially were an attorney and a child advocate. Tell us about that, and I know New York handles the court levels a little differently, so maybe give us a little education on that as well, so we know what levels we’re talking about. Since the court so different there.
Peggy Walsh 02:35
Yeah, New York’s court system has been described as Byzantine, difficult, challenging, horrific, nightmarish. Oh no, it’s not that bad. But the reason is, the levels are, there are courts at every level. So Family Court is a county level court, and then the Supreme Court is not the highest court. It’s the lowest trial level court that hears all cases, so car accidents, divorces, absolutely everything. Civil rights case, absolutely everything. So I was a family court judge, and then I became a Supreme Court judge. I loved my time in family court very much, and I decided to retire. I was a Supreme Court judge. There was a county where the judge had retired, and the you know, kind of administrators were looking for people to go to this rural county and help out. And, you know, my hand shot up. I was like, I get to go back to family court.
Krista Nash 03:28
Oh, yes. And that was what the county? That was that Albany?
Peggy Walsh 03:33
That was actually Schoharie County, which is a rural county in our judicial district, which is made up of seven counties. That’s another thing New York has. We have judicial districts that encompass, for the most part, multiple counties. But anyway, yeah, when I first started practicing, I was an attorney for parents and an attorney for children, and most of the time I was appointed by the court. And things changed after I became a judge, because when I was representing kids, it used to be that I would tell the judge what I thought was the right thing to do, you know, this is probably the right schedule, or that sort of thing. And then in 2007 there was a wholesale change. The approach to representing children was you’re the lawyer for the children. The mother has a lawyer, the father has a lawyer, the grandmother has a lawyer, whatever, whoever’s involved, and the child has a lawyer, and that lawyer represents to the court what that person wants. Now with babies and you know, kids who can’t talk, or for kids who don’t have the ability to express themselves, for other reasons, we substitute our judgment as lawyers for children, but it changed from being a law guardian. So being, you know, people used to call law guardians the eyes and ears of the court or the arm of the court. Well, forget it after the change. It was when you were representing a child. You better tell the judge what that child wants.
Krista Nash 04:59
What do you call that person now the attorney for the child, okay? And who pays for that person?
Peggy Walsh 05:04
The state, okay? Yeah. Again. So, you know, our system was the county paid for, pays for adults to be represented, but the state took on the burden of representing children.
Krista Nash 05:17
Is that true? So we’re not talking, you’re not talking about dependency neglect at all, right?
Peggy Walsh 05:22
Well, that’s that included, it’s absolutely included in that time you’re appointed to be an attorney for a child. You are talking about what the child wants. So in every child welfare case, if the child expresses a wish to reside with a parent who is accused. I mean, you know, whatever the case is, the attorney has to absolutely reflect that child’s wishes, but family court…
Krista Nash 05:44
I just wanna make sure we’re on the same page. Like, are we yes when there’s divorce, or I don’t know what you call it, but we would call it allocation of parental responsibilities for unmarried parents, do those people also all get lawyers?
Peggy Walsh 06:00
Yes, usually more by the state. No, well, again, if people are indigent or can’t afford a lawyer, and quite frankly, that seems to vary quite a bit depending on the situation, on the county, really. But anyway, so yeah, parents have lawyers, and then the judge appoints a lawyer for the child. Every case that comes before a family court judge, but we call them custody cases. Your language is much better, but we call them custody cases. So the children are you know,
Krista Nash 06:29
Let me ask you another question, just for like, grounding myself here, because it can be so different. So in our state, which might be different from others, like you, say, Byzantine or whatever, but in our state, our version of your Supreme Court? So our district courts, yes, they are our family courts and everything else. We do not have separate family courts now. We do have judges who are over our juvenile cases, which are generally dependency, neglect and truancy and things like that. And those people are given attorneys, okay, for by the state, the county, however they you know, but for the children, and they’re all given. And I was sharing, as we were prepping to come on our recording, I was sharing that in Colorado, they recently changed it so that in the last couple years, we have guardians ad litem for ages, birth to 11, basically, and that’s in the best interests of the children. So a bunch of factors, including child’s wishes, if the child, you know, if we have maturity, all those kinds of things, but it’s essentially what you think as a guardian ad litem is best. And then for 12 and up, it’s council for youth, where your job is to represent the child’s wishes. Okay, we’re encouraging kids to come to court. Yes, there’s a lot of like engagement of the kid, what the kid wants, and you’re not to substitute your judgment for what you think you should be advocating for. It’s not best anymore. But on the Family Law side, our domestic course, our domestic relations courts, we have almost no attorneys working for kids at all. Parents are not guaranteed at all attorneys, like, if you want to go hire an attorney, fine, but otherwise you don’t get one. So many, many people are pro se or don’t have an attorney, and then the child, if we have indigency shown, or low level of income, that there’s a pool of people who can be appointed for state pay, who are able to represent the child, but that’s only if in the rare case, the court decides that they need one. So it’s a very low percentage of cases where a kid gets in what I am, which is a child legal representative. Same thing as best interests or minors Council kind of thing, except it’s best interests all the way up to 18, and there’s more child’s legal representatives who will do the cases for private pay. And that’s just completely like, again, it has to be approved by the court. The order of appointment is approved by the court, but it’s paid for by the parents. So given that framework of where my mindset is, like, tell me how the family court differs in New York.
Peggy Walsh 08:57
Okay, children are given attorneys, appointed attorney at no cost to the parents. The state pays for the attorney for the child in all cases. So if there’s a petition filed seeking, we call it custody, custody of a child or dependency, which we call child welfare, neglect of use cases, every child who’s the subject of a court proceeding has an attorney, and quite frequently, actually, we have multiple attorneys, because sometimes different children have different opinions about what they want to see happen, and an attorney just can’t represent both of them, you know?
Krista Nash 09:34
They have a conflict, right?
Peggy Walsh 09:36
Yeah, yeah, exactly so anyway, but I have to say I love our system, because the child is a great source of information about the child. So when the attorney says, Well, look, here’s what’s going on, and doesn’t say it from the attorney’s point of view, but says it from the child’s point of view, that is an enormous amount of information for the person who’s making a decision about what should happen to that child, basically what’s going to happen to this kid. It’s great to know what the kid thinks should happen. So I just really appreciate that. And there are kids attorneys who really kind of maintain, look, this is what my kid says, is what my client says. But I’m just like, No, don’t. Don’t do that. Just tell me what your client wants, and everybody else is going to chime in about what they think is right for your client. But what does your client say? And you know, it’s just a great source of information.
Krista Nash 10:34
I think so that changed in 2007 so you were mentioning when we were prepping about this highest court, I think it was the highest court. A woman who’s on the highest court in New York, is that correct?
Peggy Walsh 10:43
Yes, yeah. Judith Kaye was the first woman to become the Chief Judge of the state of New York, and she instituted a lot of changes that were for the purpose of improving family court, really improving the situation of children who were the subject of cases in family court, and a lot, you know, a lot of what she did was about abuse and neglect cases, kids who lingered in foster care seemingly forever, but every moment is kind of forever for a kid who is not knowing where he or she is going to be. So she did a lot of reform around that, around moving things faster, so that there would be resolution. So, you know, that’s what she did. And then the family courts really became proactive and developed a system of trauma, informed care, kind of this is how we do things now. So people who come to our court typically, not typically, but often have been traumatized, either as children or as adults, just because they’re going through what they’re going through right now. And so we want to be careful not to traumatize them ourselves, you know, just make them feel horrible because they’re in court and things are not going so well in their lives. So we really focus very much on the appropriate way. And we had, you know, we had professionals doing this. This wasn’t lawyers and judges. This was lawyers and judges being trained by a large psychologist and psychiatrist and, you know, people who really, that’s their skill set.
Krista Nash 12:14
So, let’s talk about the difference between these best interests. Like you’re going to put your view on this, because that’s the role I play a lot. And I do sometimes get kids, especially older kids, who say, well, that’s not fair, like, I’m an individual human, right? I get a say, you know? And it’s like, well, you know? And they’ll look at me all the time wide eyed, you know, sometimes tears rolling down their face saying, like, well, at what age do I get to decide, right? You know, in our state, it’s like, well, any information you’ve heard on this is probably wrong, honey, because, you know, it’s, it’s absolutely just this multi factor thing, and we have kids, or even, like, 17 and three quarters, still being dragged into these situations by their parents. And so how do you having done both me about that and your perspective now on both, like, because I don’t, New York is one of the only states doing it this wat, yeah?
Peggy Walsh 13:04
And I again, that’s, I’m a fan of that, yeah? I mean, I think, but the real answer is, the children never get to decide. The judge always decides. Or better yet, the parents decide, and the judge kind of signs off on that, right? But that’s the best case scenario. And of course, that mostly happens. We don’t in terms of statistics, I don’t know exactly what they are, but most people do come to an agreement about what’s best for their kids, and then the judge says, okay, so it’s really the parents who say what’s best for the kids. The children never decide, and we are clear with them that they can say, I want to live with my mother, or I don’t want to do this, or I do want to do this, or whatever it’s like, okay, you can I want to know what you want, but I am not going to do what you say unless I decide it’s also in your best interest. So the legal standard is certainly what’s in the best interest of the child, and that is always what we do or try to do. That’s the idea. But hearing from the kid is a really great thing, because we just get to know why they think what they think, why they want what they want. And they’re often persuasive, you know? They say, Well, this isn’t Hey, you know, this doesn’t work with my schedule. This makes no sense. I have baseball practice on Wednesdays, I can’t do whatever. It’s like, oh, that’s, well, that’s true, you know.
Krista Nash 14:27
So, how does it work? I mean, like, we have issues now in Colorado, and I hear this often from best interests, where best interest attorneys for kids, and again, I’m really focused not on the dependency in black so much as I am on the divorce and the because it’s just a different set of liberty interests and all that. I mean, it’s just, it’s just what we’ve talked about before on the show. But what I would say is, I run into evidence problems, right? And Rules of Evidence problems, I guess, is what I’m saying, where even though I contain the information that I’ve received from the child, I’m an attorney on the case, and I have to find ways. Is that, unless a judge is going to be creative with, you know, allow or I brief it extensively, I’ve got to get somebody to get this voice of the child in. I can’t just stand there and say, This is what the child said.
Peggy Walsh 15:14
Well, we do interviews with the children whenever there’s an impasse. And, you know, a lot of times, the parents will say, Well, you should talk to him, you know, she’s talked to him, and okay, well, if you want me to, I will. I don’t want to bring the kid in, physically, into the courthouse or, you know, emotionally, psychologically, into the drama between their parents. But sometimes it’s a good thing to do, and often the kids really, really want to talk to the person who’s going to decide what’s going to happen to them, and I honor that. I mean absolutely so and we can never. We as judges can never as lawyers, you know, also can never disclose what the kid tells us, unless the kid says it’s okay. So I often say to the child, so everything you tell me is just between us and your lawyer. The lawyer is always there, and if there’s something you want me to tell your parent, then you tell me that I can or that you want me to, otherwise, I’m not telling them anything that you say. So what happens is, I give my impression. When we go back to court and I talk to the parents, I give my impression, but I don’t say anything that’s going to let the parent know. Oh, wow, my son actually thinks, or actually said. It’s likenobody needs that. Nobody needs the kid in the middle, and the parent doesn’t want to hear that the child said something negative about them, and the child doesn’t want to even say it. So I just try to be clear about what I think is the right thing to do.
Krista Nash 16:49
But not so clear about what the child said in states, we get a lot of pushback, so I’m wondering if your rules changed on this as well, about if you’re going to do what we would call an in camera interview. In camera, for those who don’t know, it’s just in chambers or, like, outside the presence with the judge, but outside the presence usually, if it’s not usually in the main courtroom, and it’s not usually, it’s not in the same kind of setting, usually. So if we’re going to ask for that, I mean, first of all, the judges rarely do it in many jurisdictions, but if they do, there’s usually a lot of fighting about who gets to listen, whether it’s recorded that we’re violating parents due process rights if they can’t hear it, and the judge is going to rely on it. So how did you find that you were able to like, what did your rules say? Or how were you able to navigate that?
Peggy Walsh 17:31
So the dependency cases, as you call them, the child welfare cases, are really different because, you know, that’s where, that’s a very different interests, that’s a different standard. And so if I’m going to interview a child, sometimes those attorneys, the parents, attorneys, want to be there, and I rarely do it in those kinds of cases. It changes when we have what we call permanency hearings, because the kids are in foster care, and they come to court every so often, like every 90 days, to talk to me or the other judges.
Krista Nash 18:01
And let me have you pause, because I’ll explain that we keep talking about these different standards and liberty interests. Because, just for listeners, it’s because when we have a child welfare case or dependency neglect case, it’s like the ones you hear about, where the you know the child, the hotlines get called potentially, and you know somebody’s worried, and you’ve got somebody reporting something like we’re talking about mandatory reporters, you know, doctors or teachers or whoever are, there’s a red flag going up. Then there are liberty interests, because it is the state against the parents. That’s the difference. tSo the government is yielding power over a family and they can terminate that parent’s rights, yes. Now we’re talking about way different situations than a two parents against each other, yes, and the state is not an actor in it, yes. And so that’s why we’re talking about so, different.
Peggy Walsh 18:53
That’s right. So, I mean, in these custody situations where, you know, these cases where parents are trying to agree on a parenting schedule, that kind of thing. It’s those cases where, by the way, I do interview the kids in the courtroom. That changed. We used to do it when there were court reporters, the court reporter would come into the judge’s chambers with the child’s attorney, and it was much nicer, I guess I would say, in a way. But we have a physical recording device, not a person, and it’s in the courtroom all this stuff, so it has to be recorded. And the child comes into the courtroom with their lawyer. And, you know, I, I would never wear a robe or be on the bench, of course, but I would just be at the table with the kid and the kid’s lawyer, and I would explain that the only people that it is I do tell the children that they’re being recorded, but I also tell them the only people who could potentially hear this is if there’s some question. I mean, it’s basically an appellate court, and the way I say it to them is, if there’s some question about what happened in this case and other judges have to look at it, they’re going to be able to hear. Or what you and I say today, right? But that’s it. Not your mom, not your dad, nobody, and not their lawyers. Nobody is going to hear this.
Krista Nash 20:09
So anyway, you know, can you rely on it? Then, like, will you say, like, other than just getting an impression, which I think is absolutely just spot on in terms of saying that’s one of the big nuances in family court, is to be able to be like, I’ve been around the block. I have a feeling it’s a credibility thing. There’s a lot that is very important for the judge to get but can you say in my order, you know, if you’re not telling them what the kids said, can you say, like, did you put that in your orders? You know that I’m relying on this information?
Peggy Walsh 20:38
No, absolutely. I mean, no, the answer is no. So that’s the tricky part for the child’s lawyer, because the child’s lawyer has to get that information, that evidence, in front of the court in a way that I can use in my…
Krista Nash 20:52
So you have the same problem we have, right? Yeah, there are some judges in Colorado who are like, go ahead, appeal me. Let’s see what happens. Right? Where they’re gonna they put in orders where they’re like, I’m going to let the best interest attorney tell me what she knows and go ahead and appeal me, if you because they’re not usually interviewing kids, and they know that I’m coming on really, as a best interest neutral. I mean, not exactly neutral at best I’m the only neutral one in the courtroom. Some of them, especially those that used to do child advocacy themselves. They’re like, I’m just over this. Like, you don’t like it, you can appeal it, but I’m gonna do the best order I can. And so I try to, like, I’m always really careful and work, trying to work as much as I can. I just today talk to a therapist. I’m like, you have to testify. Okay? Like, I’m subpoenaing you. Everybody thinks I can get this kid’s statements in without you. I can’t. I need you. Like, right? Don’t make me go through all these, these Herculean, you know, gymnastics, because I’ve got the same rules. But I do think it is one of the challenges in this. Because, you know, like, I have a guy, I have a judge on my podcast from Australia. They just do it very differently, like, some places in the world, you know, they’re like, Oh, you’re too worried about parents rights up there, United States, you know, like, so I know, I’m not going to say I agree with that, but, but there is something in me that’s like, yeah, a lot of these kids are being really damaged. And like, when I’ve got attorneys saying to me, Well, you can’t get that in knowing it’s true, knowing there’s problems going on, like, that’s a real broken situation for children.
Peggy Walsh 22:18
That’s right, and that’s why we rely on parents to do the right thing for their kids? Because, by the way, who are doing all this balancing in their own head every single day, that’s what parents do. Well, this is what he wants, but this is what’s best for him. And I want to make him happy, but I want to keep him safe. So, you know, that’s what parents do. They try to figure out, well, how do we make this work that is good for him, and that also, you know, is what he wants, and that’s what parents do, and we rely on the parents to figure it out. And they mostly do, and they mostly, you know, they mostly come together, but it’s hard, and especially when things are new and raw, and, you know, they don’t really even want to make an agreement with the other person, because they’re so angry, and often for good reason. You know, at the other person, it’s like, I get it, but we have to figure out where Johnny’s going to school. So how do you want to do that? You know, we’ve really got it. We’ve really got to figure that out, but that’s what we do. We leave it to the parents. That is the reality of it, because we trust that the parents, more than anybody in the world, the parents are going to want the right thing for their kids. So yeah, that’s it’s just helping them get there, because that’s the truth. They do and they and they usually can get there, but it’s so there’s so much between the two of them, that that’s what you know, we have to help them with kind of move forward, instead of like, being so stuck and understandably, reasonably stuck on what happened in their relationship, they just have to move forward with their kids interest at heart and really focus on that.
Krista Nash 24:01
So when you were on the bench, I know you’re doing writing, Judge Walsh is doing writing and coaching, and so I want to make sure we get into that. But I’m curious before we dive into that part about your time on the bench and just your reflections, because we talked about how you’ve listened to the kids and things like that, but like, How often were, I don’t think a percentage, but of your cases that were domestic, not the child welfare cases, yeah, of the ones that were parents breaking a family apart in whatever way that family lived, to start with, was it a very high percentage that didn’t figure it out on their own?
Peggy Walsh 24:36
No, no. So most of them didn’t. Yeah, most of them did. Yeah. It also takes a long time, and that’s all right. It is all right.I would never want any parent to be forced into an agreement that they really didn’t agree with. I mean, that’s just not going to work. It’s why we try to avoid trials, as you know, so that you have basically a stranger, a judge making a decision about what’s going to happen with this family and where a child is going to live, and how much time is here and how much time is there, and all that kind of thing. It’s just not great. It’s better for parents to make those decisions for themselves and for their kids, and when they finally get there, it’s something that they can live with, and that’s how it’s going to work, because if it’s shoved down their throat, either by a judge or because they just went too fast and they agreed to something they really didn’t want to do. It’s not going to work, and they’re going to come back. And that’s not good. Nobody profits from that at all. I mean, that is just a terrible situation. So anyway, when parents agree, and mostly they do, it’s the best case scenario. And lots of people, of course, as I’m sure, you know, come into a courtroom or a case, proceeding whatever, and really do not believe that they could possibly agree with this other person who did terrible things to them, and really don’t think that that person has any wisdom, understanding, ability to know what’s good for their kid. You know, they’re in a place where they’re just saying, There’s no way. I would rather let the judge decide. I would rather actually let the guy who sells me coffee in the cafeteria decide at this point, because him I don’t trust. So and then, okay, well, then start talking. And the reality is, people who say, Never, I will never make an agreement with that person. They do because they love their child, and they can figure it out with this other person that they also happen to know pretty well.
Krista Nash 26:30
Are there any trends you would say that gave you, like, red flags that you kind of knew, Okay, I can see that this is going to go the wrong direction, like mentioned, kind of like things getting shoved at you, or, like going too quickly. Or, what are those factors, sort of warning bells that would go off for you when you’re on the you know when you’re either now or then, or when you return, you know when you’re practicing attorney, that would be sort of warning signs that parents could consider as to sort of like I’m going in the wrong direction here, like I gotta calm this down and regroup.
Peggy Walsh 27:05
It’s how they feel. And I could see it on their faces. That’s all. It’s very simple. It’s what human beings do all the time. We look at other people’s behavior, you know, faces and their body language, and it’s like, oh, boy. This is not gonna work out. She is saying yes and meaning no, or whatever, that kind of thing. Like, okay, yes, I agree to this. Well, okay, let’s kind of go through it then and see where. And then there’s something that really is sticking in his craw. And he’s like, Well, I don’t really want to do that. It’s like, Okay, then let’s see what else we can do to make this really work, not work for today, but work for the long haul, so that you don’t keep coming back to court, which is just terrible. So, yeah, I mean, it’s how people feel. If your gut is telling you this isn’t the right thing to do, then you really ought to ask your lawyer for a little more time. Could we just take a break from this? Could we come back next week? Can we come back next month? Can we go to lunch and come back? You know, whatever, but your gut is going to tell you what, what you know to be true.
Krista Nash 28:11
So for those cases that are genuinely high conflict, you know, you’re sort of frequent flyers, yeah, and I would say there’s usually frequent flyer attorneys, which maybe demonstrates another problem you could help us understand, because it seems like the most common there’s a lot of attorneys that are in court all the time. That’s just kind of what they do. So if you hire those people, you got a much higher likelihood of going to court. Essentially, yeah, are there? What are some of the recurring patterns maybe, that you would see in cases that that were high conflict,
Peggy Walsh 28:42
I would see the child saying one thing and then saying another, so supporting the mother’s position and then supporting the father’s position and back and forth and back and forth and back and forth. And that does happen. You just know, even if the child is smiling and saying, No, really, that’s good. Oh yeah, I’m very happy with that, that’s a great schedule. Well, if the opposite was true, you know, last month, how could this now be true? And something and so that level internal conflict with the child is just a disaster. And I’ve had that a lot, and they’re usually, I’m not going to say a lot. I had that sometimes, and it was horrible for everybody. In one case, you know, I knew that the child, the lawyer for the child, kind of couldn’t get it straight. She was like, wow, she’s saying this, and then, you know, but then, like, she said this, and now she’s saying this and whatever. And she didn’t want to, and the child didn’t want to come to court. The parents didn’t want her to, so that’s fine, but there was something weird going on. And it really did turn out, the child finally said, no, no, no, it’s not true. My daddy didn’t do any of those things, but mommy told me to lie and lie about very serious things, accusing the father of doing very terrible things. And I don’t mean sex abuse, so I’m not going to go there. But just like, terrible. Full parenting things, and in an effort to limit the father’s time, because she was mad at the father for her own reasons, having nothing really to do with the child. So it was so bad that I changed custody, meaning the child went to live with her father because she needed a break from her mother constantly telling her what to do and say that was false, because she couldn’t take it. You know, kids can’t take that when they love both parents, and one parent is saying, Well, tell the judge or tell your lawyer that this happened. It’s like, But Mommy didn’t do that. Just say it. It’s okay, honey. Just say it. That’s a horrible thing.
Krista Nash 30:37
Yeah, I’ve seen that too. I mean, it’s interesting the way you describe what happens in New York, because I think I’d probably love to be a judge in New York, because, like, I love how it is that you’re doing the best interest analysis. Yes,
Peggy Walsh 30:47
What we’re doing is ultimately, that’s the law.
Krista Nash 30:51
It’s hard for me to, like, get my head around what this attorney for the child really does, or, like, why that person is so necessary. Like, maybe that’s terrible, but, like, Isn’t there another way just to collect the information about what the child wants. That would be, short of like is that, is that attorney participating in the entire hearing? And, yeah, just the participant, right?
Peggy Walsh 31:08
And if the case goes to trial, that attorney will question the witnesses. Yeah, parents, attorneys do it that year, she is a completely, you know, a full participant and absolutely everything.
Krista Nash 31:23
So that’s how we do it, too. I think it’s great. I mean, if you know, I think a lot of our judges, I don’t know, it’s just a very different system. It’s so interesting too, how different the system is, just state to state and, you know, and everybody’s doing the best interest thing, right?
Peggy Walsh 31:32
So everybody’s trying to do the right thing for kids. Everybody’s saying, we’re going to do what’s in the best interest of the child. It’s just, well, who is saying it, and how do you get there and all that. Mean, nobody is really saying, well, it is whatever the mother wants, because she’s the mother. And there’s a terrible misconception that judges always give custody to the mother because she’s the mother. And maybe that happened a long time ago, for sure, usually because the mother was the person in the home, not working, and seemed to be the primary caregiver. Whether that was always true or not, you know, is a different question. But that’s absolutely not true. Now. It is absolutely not true that mothers get custody by default or because they’re the mother or something like that. That’s, you know, I’m sure that’s not true in Colorado. It’s not true. It’s just not true. I hear this. It’s right. I do too.
Krista Nash 32:27
I do too. Yeah, and I have to spend a lot of time as the best interest attorney, like talking to that. I do think this is one of the things. I don’t know if your attorneys for kids do this too, but like, I find that one of the most valuable parts of having just generally, a child advocate, whether it’s best interests or child’s wishes or whatever, is the ability to be negotiating with the other attorneys. We’re allowed, I’m allowed to talk to the parents if, you know, I let their attorneys come with them if they want. They sometimes do. They sometimes don’t. But really being able to kind of try to get everybody onto the same page, which, you know, is one of the most powerful things to be able to say, Yeah, I don’t think the judge is going to give you full custody, Mom, you know, I know that that’s very unlikely, and here’s what we’re likely facing and and that can be very helpful when you have somebody who’s listening to the kid, who can just help everybody kind of navigate.
Peggy Walsh 33:17
And there’s no question together, those lawyers, whether they, you know, used to be law guardians in our state, and now attorneys for children, they are still seen as the people who don’t have, you know, the agenda. The mother has an agenda. The father has an agenda. The lawyer for the child is just doing the right thing, kind of thing, but it’s blown up too. You know, where it’s like, oh, that lawyer doesn’t like me, and now the judge is going to do what that lawyer says. It’s like, Well, don’t worry about it. That judge is not going to do what that lawyer says, necessarily. But so, I mean, it blows up in the sense that there, you know, or there’s a perception that the lawyer for the child has taken the side of one parent or the other. But, and by the way, that certainly happens, because often the child says, Yeah, I know. I don’t want to do what mom says. I want to do what dad says. That makes a lot more sense. I like that schedule. I like that plan better. And there’s something wrong.
Krista Nash 34:10
And the attorney is the attorney, I assume, having his or her own full ability to lawyer, be a lawyer, you they can proffer their own witness lists,
Peggy Walsh 34:18
exhibit lists, all the psychologists.
Krista Nash 34:22
They consider, I mean, that’s really interesting, because, you know, if they have to deliver, I suppose it’s true, we, we too, have to provide the court the child’s wishes. It’s just, we can kind of go a little further, you know, but it might be more similar than not actually…
Peggy Walsh 34:34
It might be, it might be, if you have the judge, what the child wants, then at least the judges, yeah.
Krista Nash 34:38
I mean, I just filed, like, I just filed a restriction in a case where, which is our version of, kind of this, like, stop everything right now, you know, because after all the work I’ve done, I really think this child’s an imminent risk. And so, you know, of course, the parent is saying, Oh, you’re on the other person’s side. You’re being bribed. You’re getting this. Oh yeah, you’re in her pocket. You know, all those accusations. People come. But you know, I’m always trying to bring my, you know, the neutral investigative side of this, to say, well, this is what this person is going to testify to, and this is what this person is going to testify and it can be the most powerful thing for the court to have that information brought. And I think, very powerfully when you’ve been working with this family for a while, you’re able to say, like, you’ve got much more probative questions, usually, than the other attorneys on the case when it comes to the actual hearing. So like, Well, I was in your house, and when I was in your house, this is what? Is it not true? Is this not true? Is this not true? You’ve got way more, like, interactive experience, at least in my role, and so that’s really helpful to the court, because you just kind of know the family better. I think you know you’ve, yes, you did a really privileged spot to have met them. Yeah, parents, all those things.
Peggy Walsh 35:48
So, yeah, no, just to say, and even things like, you know, the lawyer has to drive from, like, to meet the kid. Yeah, cool. You know, it’s like, well, it took me a half hour to drive to the school from wherever. Like, my client is going to have to be in a car, yes, or this amount of time if we go with, you know, this proposal, I don’t want that to happen. And I drove that.
Krista Nash 36:12
It’s like, well, the drive is actually over all these really bad highways, right? And this is the time, and this is how long it took me to follow you, right? And I mean, even little things like, you know, I’ve got people fighting about schools and how far it is, it’s like, well, as the crow flies, maybe, but it’s true that, like, it’s actually not further to mom’s house because it’s straight up the highway I drove, versus the backwood, windy, snow laden roads where you live, even though it’s in the same general area of the school, right? It’s just things about the house, like, Ah, no, that’s not true, because I was at your house, and I think there’s zero replacement for actually going to see children, right? And like, being in their world, I just learned so much that helps me get great information. Like you said, yes, it’s, it’s still like eyes and ears for the court, I think. And it’s pretty rare that I don’t agree with kids. But let me ask you about one challenging thing, and I really want to hear about your coaching and your and your writing. What do you do when you’re not the best interest attorney for your child’s wishes, right? You’re just, you’re bringing their wishes, but you have a child who is like, I don’t care. Like, I think, like, let’s say that kid you talked about who refuses to go right, and the person who’s the lawyer for the child is, like, pretty aware thatI it seems like this is based on all of the complex psychology and soup of what’s going on with these kids. So it’s like the kid has loyalty binds going on. You’ve got mom putting a lot in her ears. You’ve got a whole bunch of different factors happening, and the kid’s position is so dug in, and you think there might be some solutions that might help. How does in your system the lawyer do that? Or does that lawyer not do that?
Peggy Walsh 37:50
The lawyer tells the court what the kid is telling the lawyer. And can say, You know what, I wonder if maybe counseling would be a good idea here, just sort of like, let’s get a professional here. Yeah, get involved and try to suss out what’s going on with this kid. Because a lawyer is not going to throw their client under the bus, right? But the lawyer also doesn’t want to throw their client under the bus in terms of, like, but I don’t want anything bad to happen, right? I mean, that would be, I don’t want to blow my client’s cover, but I don’t want anything bad to happen to her either. So maybe we should get a counselor. You know, it’s like, okay, because then the counselor’s role is, of course, to really find out what’s going on and talk to the parents about that. Generally, you know, more than a lawyer, it’s more of a counselors role.
Krista Nash 38:38
So ethically, can your counsel for children? Can that person try to talk to the child about that attorney’s observation? Oh, yes. So like, for example, I’ll sit on the room of a kid and I broke my hand last fall. I’ll use the example of you know, I know that you are I’ll say, I know you don’t think you want to spend any time with this person. Like, I can tell from the record that, like, there isn’t any, like, abuse there hasn’t, she’ll even tell me there hasn’t anything big that’s happened, right? She just doesn’t prefer it. She’s not comfortable the person’s not in her life. You know, there’s lots of things that make me think, and even her own words, other words, she’ll say, maybe, maybe I do want a little bit of relationship, but I just don’t, I don’t, I don’t know, I don’t. So it’s that kind of thing. And and I’ll say, Okay, well, from what you’re expressing like, I want to tell you a story about how I broke my hand, right, and I fell and I had to go to the orthopedic doctor, and that orthopedic doctor did X rays and said, You need a cast, right? A cast is necessary. Or my advice is, you go do this, and then you go get PT. If you don’t get PT, it’s not going to function in the way that you would hope your hand function, right? And so I can say to the child, like part of my job is to help do a scan of how you’re doing right, and the things you’re saying to me indicate you’re not okay. Like you’re sitting here saying I’m okay, there’s nothing to see here. Leave me alone. Don’t talk to me anymore about this person. Don’t even mention that person’s name, yeah, like you’re not, I don’t think you’re okay. So can we maybe can. Probe a little bit about whether you’re actually okay, and can we agree that you could be a more functional adult and not have all this angst that’s making you throw up or feel yucky in your tummy, or anxiety, or all the things that are going on, if we were to work on this a little bit, right? So it’s like, we never force the kids to do this, but we do try to encourage them when we think that. And that does not mean I was telling kids it’s so short of, like, overnights or 5050, parenting time, right? They’re always very worried about that. I’m like, No, but I’m just worried about you, if we don’t do something, it’s going to keep eroding you, right? So, like, What would somebody in this role do in your court system? Would they be able to do that?
Peggy Walsh 40:38
That would be fine, because, you know, really the requirement is not to substitute their judgment and say to the judge, well, the father should have Friday to Thursday on this week, and then meaning, articulate something that the child doesn’t agree with. The lawyer cannot do that, but the lawyer certainly can say to the client, well, how’s that going to work? If we do that, you know, how’s that going to work?? I m