Should Judges Interview Children?

In some jurisdictions, judges deciding child custody cases make it a point to interview the children involved. The thinking behind the practice is that children should have a forum to make their views and preferences known, especially in matters that are going to affect them profoundly. A recent article in Lawyer’s Weekly discusses a speech made by Alf Mamo, a London, Ontario family lawyer, in which he urged judges to interview children aged twelve and older in the course of deciding custody and access.

I am not convinced that judges should interview children as a matter of routine. I was very struck by the experience of Judge Harvey Brownstone, recounted in his book Tug of War: A Judge's Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court. When he first came to the bench, Judge Brownstone interviewed children regularly to find out their views on which parent they would like to live with, and so on He stopped because in every case, the child told him something like, “I want my parents to get back together and I want things to go back to the way they were.” (By the way, I’d highly recommend Tug of War to anyone with children going through a divorce, or to anyone interesting in learning more about family law in Canada.)

The case against judges interviewing young children seems pretty clear. As anyone who has had dealings with young children can confirm, talking to them and finding out what they want is not always straightforward. It can take a lot of skill and patience to find out a child’s true wishes, and this is even when the child herself knows what she wants! Talking to children about sensitive matters is tricky, and few judges have been trained to do it. In addition, children are likely to find meeting the formally dressed judge in his or her chambers to be stressful and even scary. The child probably understands that this individual has a great deal of power over her family’s future, and may feel significant pressure to say the “right” thing. And no matter what the outcome, the child may feel guilty when one of her parents is disappointed.

The case against judges interviewing older children is less straight-forward, but I think that similar considerations apply. A recent study by the Australian Institute of Family Studies is interesting here. Researchers interviewed children aged 12 to 18 whose parents had separated after the 2006 reforms in family law. They found that while about two thirds of the teenagers wanted a say in who they lived with, fully one third did not. They simply did not want to be put in the position of choosing between their parents.

There should be a way for those children who desire it, young and old, to have a voice in decisions that will affect them. But there are more effective ways than having a judge interview them. A specially trained social worker or psychologist might be involved. Some mediators will interview children as part of working out a parenting plan. Let’s not forget the practical considerations. Judges’ time is extremely expensive, and everyone agrees that the family court system is over-loaded as it is. The same article discussing Mamo’s speech quotes Justice Jennifer Mackinnon who says that judges often have less than eight minutes “per side” of a case to read and prepare for a motion, and 15 minutes “per side” to prepare for a settlement conference. With such constraints on their time, does it really make sense to give judges yet another task?

What is a “parenting plan”?

A “parenting plan” is a document that specifies how family time will be arranged, information will be shared, and responsibilities will be met in the aftermath of the parents’ separation.

In most families, there is a more-or-less regular “division of labour” with respect to looking after the children and getting them to their extra-curricular activities. For example, Mom handles swimming lessons and Dad does hockey practice, while they take turns going to parent-teacher interviews. There is also likely to be some standard way in which important decisions regarding the children are made. Maybe the parents make most decisions together, but one or the other does the research. Maybe Dad has strong views about athletic activity, so he tends to handle those types of decisions.

When parents divorce the sharing of responsibilities continues, but often things get a bit more complicated. Likely, the children will be spending time in two different households. How exactly will that work? Finances will be affected. There may not be enough extra money for the kids to take piano lessons and also to continue with tai kwon do. Choices will have to be made. Maybe one parent has stayed home and has had most of the responsibility for getting the kids to their after-school activities. If that parent plans on going back to work different arrangements may be necessary. Ideally, parents work together, perhaps with the help of a mediator, to negotiate the details of the plan.

How detailed should the plan be? On the principle that those who want to disagree will find something to disagree about, the greater the potential for conflict between the parents, the more detailed the plan should be. Some parents will be fine with a plan that says, “Billy will spend Tuesday evening and overnight with his father” and let the details sort themselves out. Other parents will need (or will simply prefer) to have a plan that states, “Billy’s father will pick him up from school on Tuesday afternoon and take him to hockey practice. Billy will sleep over at his father’s place, and his father will return him to school on Wednesday morning.”

There are many reasons to get a parenting plan in place – even a temporary one - as soon as possible after parents separate. Having a plan cuts down on uncertainly and on stress for everyone. Most importantly, having a plan provides security and stability for children. (And as most parents will tell you, they aren’t happy if their children are unhappy.) Children need to know that someone will be there to take them to hockey practice and ballet lessons even if mom and dad aren’t living together anymore. It is important to them that both parents continue to take an interest in their schooling and follow their progress. They also need to be reassured that they won’t lose touch with extended family members who have been important in their lives so far.

Another reason to negotiate a parenting plan is that it means decisions can be made calmly, in a considered manner, rather than “on the fly.” The more the details are spelled out and agreed upon beforehand, the less potential there is for conflict later on. And protecting children from having to witness parental conflict can only be good.

Could a Family Mediator Help You?

Many people are now aware that mediators can help couples who are planning to separate or divorce. But the strong connection between “family mediation” and “divorce” is unfortunate. Mediators can do much more, and have a significant role to play in many different kinds of conflicts within families. Here is just a partial list of the sorts of situations where a mediator might help.

Discussions across generations. Even well-adjusted and loving families can have disagreements over difficult issues. A mediator can help adult siblings and their parents in coming to resolutions about the following:

• Eldercare decisions regarding residence, caretaking plans, medical treatment
• Estate planning and dispersal
• Succession planning in family businesses
• Shared use of vacation properties

Couples’ Concerns. It is regrettable that few people know about the role that mediation can play in helping couples stay together and work through their differences. Here are just a few areas where mediation can help couples improve communication and strengthen their relationships.

• Cohabitation agreements. (See my earlier posting on these.)
• Marital agreements.
• Differences in parenting styles
• Persistent disagreement and conflict – over financial decisions, life priorities, children’s education and religious upbringing, etc.

Separation and Divorce. Divorce and family breakdown are extremely stressful life events. Taking a non-adversarial, collaborative approach to resolving disputes can help reduce stress levels for everyone involved. A mediator can help with any or all of the following:

• Decisions about children’s basic living arrangements and schedule
• Decisions about holidays and vacations
• Decisions about children’s education and extra-curricular activities
• Financial issues, including child support and spousal support
• Decisions about how new partners and step-parents will fit into family life

Depending on your family and on the problem you’re facing, family mediation might be a good approach. The only way to know is to contact a mediator in your area and discuss your concern.

Public Art and the Rights of Artists

Public art is a fascinating topic. On the one hand there is the individual artist’s unique perspective and expertise. On the other hand there is the challenge of engaging a large and diverse audience, many of whom will not have a choice about whether to encounter the work in question. In the best public art the artist channels his or her personal vision and skill to meet these challenges, and the resulting work enriches public life. Together with the aesthetic challenges and opportunities, public art poses a series of practical difficulties for artists and commissioning bodies alike. When an artwork passes into collective ownership, it may not be treated very well. Works of public art have been moved from their intended sites to places where they do not fit; they have been left to deteriorate; and some have even been destroyed.

In an earlier post I asked, should artists give away their work, even for a good cause? In the case of public art the answer may be, not without some extended legal consultation. That was certainly my reaction after reading about the current controversy in Germany over the “East Side Gallery,” an outdoor art exhibit. Back in 1989 after the Berlin Wall fell, over 100 artists from the east and the west worked together to create large outdoor murals on a 1.3 km section of the wall. The free gallery became a must-see for visitors to Berlin and millions have visited it. Two years ago, in preparation for a celebration of the wall’s fall, the site was overhauled. At that time artists were offered 3000 euros (about $4154 Cdn.) to recreate their original murals. Many artists felt that the proposed compensation was too low – especially since the city had set aside 2.2 million euros for the renovation. Those artists who refused to cooperate were told that their work would be painted over and then re-created by someone else.

The city of Berlin is now being sued by 21 artists. They charge that the city has improperly destroyed some of the works and reproduced others without permission. One artist, Thierry Noir, has already been awarded 250, 000 euros by the courts after a section of the wall that he painted was sold to a private collector.

It is both sad and ironic that a project that began as an expression of freedom and good will has become a source of enmity and conflict. The case will not be heard for three months, and I’m not familiar with the relevant German laws. Two different kinds of rights seem to be at issue. First is copyright – this is the right to reproduce the murals. Typically, when an artist sells a painting, he or she sells a physical object only, and the right to make copies of the image (say, as a book cover or a Christmas card) must be negotiated separately. The second issue is the artist’s moral rights over his or her creation. Depending on the jurisdiction, artists who sell their works have the right to expect that these works not be destroyed or interfered with in significant ways.

I will be interested to hear the German courts’ verdict on both of these issues. It will also be interesting to see if, in the future, artists are a bit more cautious in their dealings with the state.