I was very impressed by an article I read from the Scottish government regarding children and divorce. In 2007, the Scottish government issued a report based on their intention to implement the United Nations Convention on the Rights of Children or “UNCRC”. Article 12 of the UNCRC confers the right to express views on matters affecting children and for those views to be given due consideration. It further says:
“that parties shall assure to the child who is capable of forming his or her own views, the rights to express those views freely in all matters affecting them and that the views of the child are given due weight in accordance with the age and maturity of the child.”
In particular the child is provided with the opportunity to be heard in any judicial or administrative proceeding affecting the child.
I found this fascinating because in a divorce proceeding who is more affected than the children? The adults are adults. They can understand what is going on and can handle the ups and downs, but the children are often incredibly impacted by the divorce and not sure how to handle it. As children, their voices are infrequently heard and they are rarely given the opportunity to speak for themselves. In a divorce court proceeding, they would have a Law Guardian appointed to them to represent their interests and speak for them. The Law Guardian is an attorney who will express what he or she thinks are their desires, but when it gets put in a legal context, sometimes the message is lost.
In a divorce court setting, judges can have an “in camera” meeting where the child or children meet with the judge in the judge’s chambers to have a private conversation. This is generally done so the judge can try to get a feel for what is going on in the family setting from the children’s perspective. The children and parents are told that what the children say is not going to determine the outcome. The judge is only interested in their perception of what goes on in the home and the parents’ relationship and uses the best interests of the child standard established in Tropea v. Tropea as the basis for the judge’s determination.
As a divorce mediator, I have worked with couples whose children are old enough to express their opinions. Their parents may have very different views on what is going on in the home. The father might say everything is fine. The kids are fine. And the divorce is not having much of an effect on them, while the mother may say the kids need therapy and are having a horrible time, and the other parent is not involved with them, has no idea what is going on now and never had any idea what was going on in the family. With their views so disparate, how are you going to know what the truth is and what is the best outcome for the children?
In divorce mediations like these, with the parents’ permission, I have met with and spoken to the children in an informal setting and asked them:
“What is going on? Let me know if there is something I can do to help. I will maintain your confidentiality.” If there are multiple children I will not tell the parents who said what. I may change the words a little bit, just so they don’t know who it is coming from. “I want to express to them your feelings about what is going on and how it is making you feel. I want to try to give you a voice in this whole process. I want to give you the opportunity to express how you feel about the way your parents speak to each other, treat each other, and about how your parents getting divorced makes you feel.”
I then meet with the parents and discuss my conversation with the children. Often one parent will say they had no idea, which is usually followed by the other parent saying, “I told you so.”
Since children are part of the family and affected by the pending legal separation/divorce, it seems only fair that their opinions should be solicited and considered as part of the mediation process when appropriate.