Voice and Support: Programs for Children Experiencing Parental Separation and Divorce

2004-FCY-2E

1.  INTRODUCTION

Children have traditionally been invisible spectators to the public proceedings of their parents' separation and divorce, and have been left to weather its emotional turmoil largely unaided. The legal processes of custody and access decision-making have been considered the exclusive responsibility and have largely excluded children, even though children's best interests are now expected to govern custody and access decision-making.

However, the attention of Canadian policy-makers is being increasingly drawn to children's needs and wishes during parental separation and divorce. The continued high numbers of Canadian children now experiencing the separation and divorce of their parents, and at younger ages, have prompted greater interest in programs and services to support children through the process and later. The 1989 signing of the United Nations Convention on the Rights of the Child stimulated a growing concern for, and commitment to, allowing children more say in judicial and administrative proceedings and decisions that affect their lives, including custody and access decisions. As a result, the Special Joint Committee on Child Custody and Access recommended that children have the opportunity to "be heard when parenting decisions affecting them are being made" and to "express their views about the separation or divorce to skilled professionals whose duty it would be to make those views known to any judge, assessor, or mediator making or facilitating a shared parenting determination" (Special Joint Committee 1998).

Although providing supports for children experiencing their parents' separation or divorce and including their voices in custody and access proceedings are independent issues, the research presented in this paper shows they are linked. Programs to support children may also indirectly allow their voices greater hearing in custody and access proceedings, and proceedings that include children's voices in some capacity may enhance their well-being and adjustment. Moreover, the children's role in the public process of custody and access proceedings, and the private process of family adjustment, can take many forms. The main task for policy makers is to identify programs that support children, and that incorporate their voices into public proceedings, in ways that enhance their adjustment and serve their best interests.

This report examines three main questions:

  • What research exists on children's needs during divorce and separation; the benefits to be gained by helping them adjust to both to the separation process and subsequent family arrangements, and, on the benefits to be gained by giving them a voice in the decisions made about these post-separation family arrangements?
  • What current programs, services or legal proceedings exist in Canadian and other jurisdictions to support children in either of these ways, including court and community programs?
  • To what extent do existing services meet current need, and what additional programs, services or legal proceedings would significantly help Canadian children experiencing the separation and divorce of their parents?

Section 2 of this report looks at research on the impact of divorce and separation on children, and on children's responses to separation and divorce, and outlines children's needs that can be addressed by programs specifically for children. Section 3 and Appendices A and C describe the main programs delivered by courts and community agencies in Canada and (largely) the United States, as well as evaluations of their effectiveness.

Section 4 outlines the reasons for including the children's voices in custody and access proceedings, and the general issues involved in deciding when and how their feelings and wishes ought to be included so that their best interests are served. Section 5 and Appendix B outline the research and expert debates on how and when to include children in custody and access proceedings, such as during mediation and family assessments. The section also describes the extent to which Canadian children are currently included in these proceedings.

The project gathered information by means of a survey of the existing social science and family law literature, a Web site survey of programs for children (mostly North American), and informant interviews with more than 30 community program service providers, court officials, provincial government representatives and published experts in the field. Nearly all the key informant interviews were conducted by telephone. A few were conducted by e-mail.

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