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Children’s voices in family law conflicts

Children are commonly recognized as separate human beings with individual views and wishes worthy of consideration. Their ability to freely express these views and wishes constitutes the concept of child participation, defined by Article 12 of the United Nations Convention on the Rights of the Child as the right of children capable of forming their own views to be able to express themselves freely in all matters affecting their lives. Children should particularly be provided with the opportunity to be heard in any judicial and administrative proceedings pertaining to them, either directly or through appropriate representatives, and with necessary precautions and support.

Beyond the international law definition of child participation, the right of children to be heard has been increasingly recognized by national courts, even in the United States, which qualifies as one of the very few countries that has not yet ratified the Convention. For instance, the recent case In Re Marriage of Winternitz, 2015 DJDAR 3526 (27 February 2015) decided by the 4th District Court of Appeal, Division I, of California on 27 February 2015, includes an important holding regarding children’s wishes in custody law disputes. The California Family Code Section 3042 provides that courts should consider and give due weight to the wishes of a child when making an order granting or modifying custody or visitation. The statute has also recently granted permission to children to address the court if they are 14 years or older, unless it is against their best interest.

California courts have interpreted this statute in different ways. Some judges allow children to provide testimonies, others prefer to meet with children privately, and finally some still refuse to hear children’s preferences. The Winternitz opinion concerns Tami Winternitz’s request to move away with her minor daughter, Jamison. The father, William Winternitz, opposed the move and sought custody of the daughter. The trial court found that denying the move-away request was in the best interest of the child and decided to grant primary custody to the father, in spite of Jamison’s wish to remain with her mother. The court clarified that the fact that the decision did not follow the child’s custodial preferences did not establish an abuse of discretion because her wishes were expressly considered and given due weight by the court.

Image uploaded by Succo. 12 April 2015.  CC0 Public Domain via Pixabay.
Photo by Succo. CC0 Public Domain via Pixabay.

Empirical studies conducted in Ireland and New Zealand have compared the different approaches adopted by national courts in providing children with the opportunity to be heard in family disputes. Findings show the importance of legislation in securing the implementation of the right of children to have their wishes taken into due consideration. In Ireland, where there is no proper regulation granting children the right to participate in family law proceedings, judges reluctantly and seldom seek children’s views. In New Zealand, on the other hand, courts are very supportive and accustomed to this practice, regulating judicial interview with children through legislation and national guidelines.

Studies conducted in Canada found that both judges and children benefit from judicial interviewing. Children shared their wish to be involved in the decision-making process affecting their family situations without dictating the final decision. They want to have “a voice, not a choice.” Judges, also, believed that meeting with children is a useful tool to complement or corroborate the facts and information about a case. Other studies in Israel have suggested that allowing children the opportunity to participate in their parents’ disputes has a positive impact on the decisions reached by the court and contributes to children’s well-being and satisfaction with the process. In addition, parents were surprised to find that the information sought by a third party helped them better understand their children and what they were going through. In California, when children are denied the opportunity to meet with the judge and have their voice heard, they become disappointed and frustrated.

Thus, the goal of allowing children to participate in judicial proceedings affecting their lives is not to impose their preferences or grant them veto power. It is instead about empowering children to voice their feelings and opinions and promote their self-esteem, respect, and trust in others and themselves regardless of the outcome. This is also the correct interpretation and the purpose of the children’s right to participation under the United Nations Convention on the Rights of the Child. Thus, even though judicial opinions, as in the Winternitz case, may not always follow the child’s wishes, the court’s concern to consider and give them due weight in reaching the decision is exactly what child participation is about.

Image Credit: “Epic Parenting 101” by Peter Kirkeskov Rasmussen. CC BY NC-SA 2.0 via Flickr.

Recent Comments

  1. Deanna R. Jones

    This is a really interesting read. It seems like involving children in the decision making process throughout a divorce can be a great benefit to them. I can see how the best way to make decisions based on the best interest a child should be done by talking to them about it. The story in this article about the California father who sought custody of is daughter is a good example of that. He could have made a really good case of why he should gain custody over her, so it was a good thing that they discussed it with her first to discover that the move really isn’t in her best interest.

  2. Joel

    I’m glad that studies are finding a positive relationship with children being able to have a voice in the divorce process. It can be very difficult for children to go through something like this. A friend of mine is going through a divorce, and her biggest regret is that her children have to suffer through this too. I’ll have to show this to her. Thanks!

  3. Laila Keirstead

    How often do children’s voices get heard in a divorce case? I feel like they don’t get much of a choice or say in the matter. I could be completely wrong, but It really seems like they don’t have much of a say. I guess it is because they might not know what they really need and which family member is best for them.

  4. Paige Smith

    It is interesting to learn a little bit about childrens voices in family law. I wish I had had more of a voice or understood more when I was a kid and my parents divorced. I feel like that could have saved a lot of heart ache.

  5. Ian Johanson

    I agree that it is a good idea to make sure children’s preferences are heard in cases that will affect their lives. Like you mentioned, it shouldn’t be a veto power because what they want may not be what is best for them. However, I do agree that it will help boost their confidence in themselves. Even if they don’t get what they want they will know that their views were heard and considered and what they have to say does matter. Besides, I think that children are much smarter than they are often given credit for.

  6. Kiara Woodsland

    I’m glad to see that as a child you have the right to freely express your views and wishes in all manners that affect their lives. My brother and his wife are getting a divorce and I would hate from the kids to not have a say with who gets child custody. Thank you for your information!

  7. Liz Lyons

    I think that it is important for children to have a say in the custody battles. I think that having a parent that is really on top of things should get the favor of the court, rather than a gender bias. I think it is important to listen to what children say about their parents.

  8. Kyler Brown

    I have a friend who is going through some marriage troubles right now, and he’s really worried about what will happen to his kids in the event of a divorce. I think this post will be very beneficial for him. I agree that children should be provided with the opportunity to be heard in any judicial and administrative proceedings pertaining to them. Thanks for sharing this.

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