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

2004-FCY-2E

4.  VOICE OF THE CHILD

Two reasons are advanced for including children's voices in custody and access proceedings. The first concerns their rights, and argues that children are entitled to have a say in decisions that affect their lives. The second concerns their interests and argues that including children's voices in custody and access proceedings serves their best interests, either through its effect on them directly, or its effect on the quality of decisions made.

4.1  The Right to Voice

The 1989 signing of the United Nations Convention on the Rights of the Child (e.g. Australian Law Reform Commission, 1997) has stimulated Canadian and other national governments to express more interest in, and concern for, giving children a voice in judicial and administrative proceedings and decisions that affect their lives. The Convention requires governments to assure children who are capable of forming their own views the right to express those views freely in matters that affect them, and to give their views due accord in institutional decision making (e.g. Brown 1996a). To this end, children are to have the opportunity to be heard in any judicial and administration proceedings affecting them, either directly or through a representative or another appropriate body. Canada, Australia and the United Kingdom (though not the United States) have ratified the Convention.

Arguments asserting the primacy of inherent rights as the reason for giving children a voice in custody and access proceedings do not claim that children always know their best interests or that expressing their voice in legal proceedings never harms them. These arguments for giving children a voice, therefore, may in certain situations be at odds with the children's best interests. Most commentators believe that children's stated wishes often conflict with their best interests (e.g. Austin et al. 1991; Huddart and Ensminger 1995; Brown 1995 1996a).

A basic issue for policy makers is when, and in what way, children's rights are to be included in custody and access proceedings, and when this needs to be tempered by considerations of their best interests.

4.2  The Children's Voice and Their Best Interests

The second reason for including children's voices in custody and access proceedings is that doing so serves the children's best interests. Custody and access decisions are now governed in most English-speaking jurisdictions, Canada included, by the principle of the best interests of the child. Several jurisdictions explicitly include the child's own wishes as one consideration that judges must weigh in deciding individual custody and access disputes.

Traditional custody and access proceedings entitle parents to decide post-parenting arrangements on the child's behalf, and this entitlement is based partly on the assumption that parents are best able to decide their children's best interests, or, if they fail, that courts can fulfill this role. In 1994‑95, 38 percent of Canada's separated and divorced couples had a court order governing their broken union (with another 10 percent in progress) (Child Support Team 2000). Only a tiny proportion of divorcing or separating couples have disputes decided by a final judicial hearing; most settle before that. In cases not using the legal system, parents reach agreements on their own or with the help of lawyers and mediators.

Many commentators and researchers are skeptical that either parents or the courts always know what is best for the child.

4.2.1  The Parents' Capacity to Assess Children's Best Interests

As discussed in section 1, many parents' capacity to attend to their children's needs, or communicate with them, diminishes during the separation and divorce period. As a result, researchers and commentators are often skeptical that the parents' decisions made during this period are always based on their understanding of their children's best interests. The explosion in parenting education programs reflects this skepticism.

This problem is compounded by the judicial system's tendency to assume that children's best interests coincide naturally with those of their parents' (L'Heureux-Dubé 1998), and to accept uncritically that legal processes and post-parenting arrangements which best suit the parents will also best suit the children. The research contains many examples of post-parenting agreements that ignore young children's developmental and emotional needs, but optimally satisfy the parents' needs. This is as likely to occur with agreements amicably and easily reached, as with those reached amid high conflict. Examples include arrangements in which the child spends one year at a time with each parent, or in which infants spend months at a time with different parents (e.g. Wallerstein 1986-87; Beck and Bianck 1997).

Post-parenting agreements that work well when children are young often do not work well when children reach adolescence, after parents' and children's interests have diverged (e.g. Wallerstein 1986-87). Both mothers' and fathers' time with children declines as children grow older (Thompson 1986, cited in Nord and Zill 1996), at least partly because the children develop other interests (Wallerstein and Lewis 1998). Yet some parents continue to rigidly enforce the original custody and access arrangements (because they still work for the parents) at cost to the teenager's social and emotional progress. The longitudinal California study found children felt silenced and coerced by the rigid enforcement of the original arrangements. This became a major issue for these teenagers, especially the vacation arrangements (e.g. Wallerstein and Lewis 1998).

Researchers also found that none of the children who were forced to see their fathers (under a rigidly enforced court order or unmodified parental agreement) had good relationships with them as adults. To not include children's voices and especially, to not allow the preferences of older children to shape custody and access arrangements in an ongoing way, may undermine their well-being as adults in ways beyond those usually captured in outcomes research.

These problems appear frequently enough to conclude that even parents who cooperate in low-conflict post-separation parenting do not always serve their children's best interests and are not always aware of their children's interests. Even researchers who argue that most parents (and courts) genuinely believe they are acting in the children's best interests, also believe that, nonetheless, parents and the state tend to pursue claims that serve and protect adult interests (see citations in L'Heureux-Dubé 1998).

4.2.2  The Court's Capacity to assess Children's Best Interests

Some observers, including judges, are equally skeptical of a court's ability to ascertain children's best interests (L'Heureux-Dubé 1998; Brown 1996). Studies show that judges tend to base their decisions more on qualities of the parents as persons than on the quality of the parent-child relationship in making custody and access decisions (cited in Brown 1996; L'Heureux-Dubé 1998). One 1982 study of U.S. judges and commissioners (admittedly somewhat outdated) found that each parent's mental stability and sense of responsibility to the child figured most importantly in judges' decisions. Judges also used different criteria to assess mothers and fathers morally: fathers were more morally deficient when they did not provide for their families or abused their children, mothers when they committed adultery or prostitution (Settle and Lowery 1982, cited in Brown 1996a). A subsequent study of psychologists and social workers found that the same criteria predominated, except that this group assigned less importance to biological relationships and to keeping young children with the mothers (Lowery 1985, cited in Brown 1996a).

Another small study of Canadian custody evaluators found that their three main criteria were: child's attachment to the parent, the child's wishes, and the need for continuity of care (Parry et al. 1986, cited in Brown 1996a).

Considerable evidence shows that children, too, are often unhappy with judges' decisions (e.g. Lyon et al. 1998; Wallerstein and Kelly 1980, cited in L'Heureux-Dubé 1998). For example, the longitudinal California study found that the court decisions were rarely what the children wanted.

Commentators conclude that including children's voices in custody and access hearings can help the courts, as well as parents, make decisions that serve children's best interests (e.g. L'Heureux-Dubé 1998).

4.2.3  Children's Voices and Their Long-term Adjustment

Some research shows that including children's voices in the decisions that rule their lives, including legal decisions on custody and access, contributes directly to their well-being and adjustment, and by implication, to their best interests.

Child development research suggests that self-esteem, competence, self-efficacy and self-understanding contribute importantly to developing children's resilience. Researchers on resilience argue that to develop the healthy self-concept crucial to resilience—and to keep it—children need to feel they are in control of their lives, and are able to act on their own behalf, especially during major transition times. Resilience demands more than passive acceptance (Rutter 1989, cited in Family Law Council of Australia 1996). Australia's Family Law Council recently cited these kinds of benefits in calling for greater inclusion of children's voices in custody and access proceedings (Family Law Council of Australia 1996).

4.3  When and How to Include Children's Voices

Since including children's voices may advance their best interests, the most important issue for policy makers is when and how to include children in custody and access proceedings in ways that do this. The literature suggests four possible ways. First, children's wishes and preferences may decide the matter. Second, their wishes and preferences may directly inform decisions. Third, the needs and interests that children express inform, or are the basis for deciding, custody and access decisions. Fourth, children are kept informed, and have events and decisions, and their implications, clearly explained to them.

With older children, discussion focusses on the first two ways mentioned. Older children, especially teenagers, are likely to want to express their wishes, and often want these wishes respected. Discussion concerning older children revolves largely around the age at which, or the criteria by which, the children's wishes should be treated in the same way as adults' wishes, that is, as decisive. The pressing problem is to know when the court should override the children's own wishes, in cases when these wishes flagrantly conflict with their best interests. This is largely a matter of judicial policy and practice. Current common judicial practice is to grant considerable, if not controlling, weight to the custodial preference of children 14 and older, and there is apparently a trend to give greater weight to younger children's preferences (Brown 1996).

With younger children, discussion focusses most often on the last two ways mentioned above. There is considerable evidence that children do not want to make the big decisions about who they will live with, and how often they will see their non-residential parents (e.g. Huddart and Ensminger 1995; L'Heureux-Dubé 1998; Pruett 1999). They may be more interested in the smaller questions of whether, for example, they have to go to the football game every Saturday with Dad.

It appears to be more difficult to elicit younger children's wishes and preferences concerning larger issues. Young children's capacity to articulate their genuine and rational preferences is also dubious, as discussed in the next section. Few commentators appear to believe that children's wishes should always be decisive as a matter of principle, for older or younger children (e.g. Huddart and Ensminger 1995; L'Heureux-Dubé 1998; Brown 1996).

Clearly, though, children do want their parents to recognize and attend to their needs and interests in custody and access decisions. For policy makers, the key issues regarding younger children are how to enable them to participate in legal proceedings that both optimize chances of decisions that serve their best interests and minimize those that may harm them. Harmful results can range from parental retribution to making children feel they are the sole decision makers, responsible for making it all work out. Specific policy issues revolve around when, and if, children should directly participate in proceedings (and, if so, which ones). Another issue is when, and if, they should be heard indirectly through the voice of a disinterested third party, such as a mediator, custody evaluator or expert witness, or any third party acting as advocate for the child's best interests.

Given the limited range of young children's voices, a related policy issue to be resolved is what kinds of decisions and deliberations need to include their voices.

A study of the ways in which Canadian children's voices can be included in Canadian court hearings—e.g., through direct testimony, judicial interviews, participation in the proceedings as a party with legal standing, or through counsel charged with representing the child's best interests—was completed recently (Bessner 2002). Section 5 will examine how children's voices may be included in proceedings leading up to the courtroom, or proceedings outside the courtroom (such as preparation of custody assessments) that are used in making court decisions.

4.4  Children's Capacity for Expressing Their Needs and Wishes

Both the rights-based and interests-based arguments for including children's voices assume that children can speak about their needs, or their wishes, authentically and rationally. If they cannot, then one may argue that they can have no right to have their wishes heard, and that what they would say may be little help in determining their best interests.

Rationality refers to the capacity to form rational preferences, or more precisely, to form preferences that meet the criteria set for autonomous rational persons, and which are imputed to adults. Authenticity refers to the capacity to express genuine preferences or needs in contexts where the child is caught in agonizing conflicts of loyalty and/or is trying to please and appease adult caretakers and authorities.

4.4.1  Rationality

Some studies show children can form reasonable preferences and wishes that reflect rational deliberation (e.g. analysis of future risks and benefits). One study of 9 to 14 year-old children in intact families found that, given two custody dilemmas and asked to state their preference and reasons for a particular outcome, their reasons and preferences closely paralleled factors included in existing U.S. legislation (Garrison 1991, cited in Brown 1996). Judges gave the children's reasons moderate weight when asked to resolve the same cases. Research also shows that children often remember more than they say they do. The age of a child has been shown to affect the amount of recall but not its accuracy (see citations in Brown, 1996). However, children generally become confused under direct questioning, and have particular difficulty with questions involving "yes" and "no" answers (see citations in Brown, 1996). Other research suggests limits to children's capacity to deliberate rationally (see e.g. Bowen 1998).

Research suggests there are limits to many children's rational capacities, but it does not demonstrate that children's preferences should be dismissed. Even if children's wishes do not reflect the full rational deliberation we impute to adults' wishes, there may be no reason not to give children's wishes decisive or significant weight in cases when doing so does not conflict with their best interests or harm them. Concerns about children's rationality surface mainly in relation to discussions about the weight that should be given to children's wishes and preferences.

4.4.2  Authenticity

Most practitioners and service providers are concerned mainly with children's capacity to express genuine preferences in custody and access proceedings (Brown 1996; Austin et al. 1991). The best interests principle is part of a larger effort to reduce adversarial proceedings. But there seems to be broad agreement that children are often manipulated or pressured by parents, are made to feel (or may feel) responsible for parents, and are typically torn by loyalties to parents to a degree that makes it extremely difficult for them to say what they want, even to themselves (e.g. Austin et al. 1991).

Concerns about authenticity apply as much to children's capacity to express their needs and interests as to their capacity to express preferences. However, there is considerable support for the view that, under the right conditions, children are able to articulate their needs and interests from a very young age (e.g. Wallerstein citations in L'Heureux-Dubé 1998; Brown 1996). These right conditions do not generally exist in the courtroom. They include being asked questions by skillful listeners who are knowledgeable about child development and the broader context of the family's circumstances (Brown 1996). For younger children, they include the same skills and knowledge, as well as the ability to interpret behaviours as much as words (Brown 1996).

Given the parental and other pressures on children in custody and access disputes, most practitioners and researchers are cautious about when to accept children's voices as authentic in custody and access proceedings (e.g. Austin et al. 1991; Brown 1996). Most do not think the problems of determining authenticity and rationality should prevent children's voices from being included in custody and access decision making. However, as the discussion in section 5 shows, many do think these problems circumscribe how children's voices should be included and how much weight they should be given.

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