A Call to Include the Voice of the Child
In 1989, the United Nations Convention on the Rights of the Child affirmed that “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.” Following the issuance of this document, countries, states, and provinces have met this challenge with a variety of statutes and processes. Despite the US never having signed the Convention, states commonly include a Best Interest factor related to the child’s preference in family law disputes. In Canada, provinces have established the Voice of the Child report as a way to hear from children and provide their thoughts, wishes, and feelings through meeting with a professional. Mediation, parenting plan evaluations, parenting coordination, Guardians ad litem, minor’s counsel and hearings/trial processes allow children to provide their preference, their perspective, and information about many aspects of family life and relationships important to deciding their “best interests.”
Benefits
Allowing the child to be heard in family law processes can have numerous benefits, including: assuring children that their thoughts, hopes, and feelings are being considered, not just their parents’; conveying that decision-makers actually are considering their best interests; supporting them sharing the unique information they have; and allowing them to say what is important to them, which may be quite different from what the parents think is important to the child. When the child’s voice is heard and considered, they are more likely to feel even a small measure of control over decisions by their parent(s) that upend the child’s family life and sense of security.
Special Considerations
However, there are also risks of involving children in legal processes that must be carefully considered before interviewing them. Children do not typically understand the various roles of professionals involved with their family: parenting plan evaluator, parenting coordinator, guardian ad litem, minor’s counsel, judicial officer, and therapist. Every one of us has a responsibility to introduce ourselves in developmentally appropriate language and to check for understanding. As an example: Your parents have asked me to help them figure out how they’re going to share you. Or: Your mom and dad asked me to help them figure out which school you’re going to next year. Further, while we understand the meaning of “a voice but not a choice,” we often need to explain that to the child at some point in the interview.
When we speak with children, we should be aware that the child’s timeframe may be very short. Answers to questions, such as “Who helps you with your homework” may result in answers that cover the most recent few months but not the entire history of parent involvement with the child. We often use words whose meanings either may not be understood by children or they use them incorrectly. These include questions such as “Who usually takes you to the doctor” or “How long has your dad been taking you to piano lessons?”
Professionals tend to hear the child’s expressed views as reflecting the past, present, and future. However, children’s preferences are not static and can be affected by many factors. A child who last month told their therapist their parent was “mean” may have been expressing what happened that morning. A child who says they want “more time” with their dad may mean that literally. If given the chance to explain what that means to them, the interviewer might learn that child wants to spend more time with their dad but not with their stepmother and “her kids.”
If the professional interviewing the child has not been trained in conducting developmentally appropriate interviews, the reliability and validity of the information obtained may be diminished. Interviewer errors include forced choice questions – giving the child only two options, using Yes/No questions instead of open-ended questions that allow the child to provide more information, and failing to clarify the child’s answers to allow the child to correct the interviewer’s misunderstanding and expand their answer.
The child may feel pressured by the professional to answer questions even when the professional is not intending to do that, again because of lack of training. Sometimes we frame the interview by saying, “I need you to help me” or “I know you must have a lot you want to tell me.”
Parents will often tell us that their child “will talk your ear off” or “s/he’s very shy and not likely to talk with you.” Children who, in social situations are chatty, may be more anxious and uncertain in a formal interview and need time to understand the process. When we communicate genuine interest in the child, show patience to allow them to talk at their own pace, and establish rapport before asking about the issues of concern, children will be able to settle in and engage in a meaningful way. Starting the interview without preconceptions from what others have told the professional – confirmatory bias - is key to a positive experience for the child and a successful experience for the interviewer.
We also need to be aware of reasons why children won’t participate, provide unreliable information, or attempt to further an agenda – their own or someone else’s such as a parent or sibling. Children may resist participation due to loyalty conflicts, uncertainty about how their information will be used, fear of retaliation by family members, and fear of withdrawal of affection. Interviewers need to be aware of risks to children in cases with allegations of abuse – both child maltreatment and domestic violence. The risks may be various forms of retribution to them or to the survivor parent: physical, emotional, and economic. Sometimes it is important to end an interview “prematurely” to support the child’s safety. Telling the child, “Thanks for meeting with me today. I really appreciate it” ends the experience on a positive note.
We sometimes speak with children who knowingly mislead the interviewer. Some children know they are expressing coached or pressured views from a parent or other family member, and some are not aware they have incorporated the parent’s position into their own. The professional may think it a helpful strategy to confront the child about their misinformation, but we actually learn more by exploring through “tell me more about that” and “how do you know” questions. Another strategy involves telling the child “I heard… Tell me about that.”
Although there is no checklist for coaching, some signs can be helpful in sorting out whose voice we are actually hearing. We look for words and sentences that are not consistent with the child’s developmental phase. The 6-year old who says “I want that 50/50 thing” but they don’t know what 50/50 means. The 12-year old who says, “My dad should be able to leave in the matrimonial residence.” Influence is also seen in children knowing what is in court papers, knowing what amount of child support is being paid, or knowing the parent’s affair started before the separation even though they didn’t meet that person until months after the separation.
It is important to remember children are likely to be interviewed by multiple professionals. They may mistakenly believe that if they “already told” about events in the family, the second or third professional knows that information. Children may appear inconsistent because of this. Convey to them you want to know “all about” their thoughts, feelings, and experiences.
Tips to Reduce Harmful Effects of Hearing from Children in Family Law Processes
- Use developmentally appropriate techniques to obtain reliable information.
- Tell the child the limits on confidentiality and any mandated reports.
- Know the topics you need to cover with each child and be prepared to follow the child’s lead to topics you may not have expected.
- Avoid pressuring the child to answer any or all questions.
- Remain aware of the risks to the child of expressing a preference.
- Remember that preference may change over time and may be vulnerable to influence from family members.
- Be prepared to hear “canned” stories; be careful about sharing your disbelief.
- Expect diminishing benefits of multiple interviews in the form of less information offered by the child and seeming contradictions.
- Avoid trying to confirm information already obtained from parents, therapists, etc. Offer the child the opportunity to share their thoughts and feelings without assumptions on your part.
- Present as friendly, supportive and empathic; this enhances rapport building and the child’s confidence in the professional being genuinely interested in them.
Mindy Mitnick, EdM, is a Licensed Psychologist practicing in Minneapolis. She received a Master of Education from Harvard University and a Master of Arts from the University of Minnesota. She specializes in complex custody cases, working as an evaluator, therapist, and parenting consultant. Ms. Mitnick has trained professionals throughout the country about developmental issues in parenting schedules, effective interventions in high-conflict divorce, assessing allegations of sexual abuse during divorce disputes, and the use of expert witnesses in divorce cases. She has been a speaker for the Association of Family and Conciliation Courts, National Association of Counsel for Children, the National Center for Prosecution of Child Abuse, the Ontario Office of the Children's Lawyer, and numerous statewide training conferences. Ms. Mitnick served on the Minnesota Supreme Court Task Force on Parental Cooperation and the American Bar Association working group to update guidelines for child witnesses in criminal cases.