Mom, Son Reunited After 2-Year CPS Nightmare
May 31, 2010
The case that's dropped jaws all across the U.S. and Canada is finally coming to an end. Judge Kip Leonard is finally allowing Noah Kirkman to return to his native Calgary after two years in foster care in Oregon. Read about it here (Yahoo, 5/29/10).
I and countless others have written outraged pieces about the case. Noah Kirkman is now 12 years old. When he was taken into foster care by Oregon authorities two years ago, he had not been abused; he had not been neglected. No one has ever claimed that his mother Lisa Kirkman (pictured) or his stepfather John Kirkman has ever been anything but a good parent to him. That's reflected in his grades which are straight A's despite Noah's severe ADHD.
No, in their zeal to substitute foster care for parental care, Oregon child welfare authorities decided that Lisa Kirkman had abandoned her son. How did they figure that? Well, he was living with his stepfather in Oregon, that's how. Make sense to you? After all, John has been the boy's steadfast and true dad for 10 of his 12 years on this earth. How Oregon child welfare workers and Judge Leonard concluded that a boy, who's never been abused or neglected in any way and who's living with his stepfather, had been abandoned is one for the record books. In all the annals of state intervention into families, has there ever been a case more arbitrary or capricious?
Recently, Lisa Kirkman asked what Oregon child welfare authorities do with kids who go to summer camp. She had a point. If a stepfather has no parental authority, does a camp counselor? Can we look forward, in the upcoming weeks, to child welfare sweeps of Oregon summer camps for kids?
In the meantime, we can also enquire as to what's changed to make the judge allow Noah to return to Canada. Is he in some way less "abandoned" now than he was two years ago? Have Lisa and John miraculously become better parents? I doubt it. I think the extreme level of public and media-based outrage at the highhandedness of the judge and the Oregon DHS forced them to do the obvious - the thing that any non-zealot would have done from the very first day - send Noah home to his dad and move on to real cases of children who suffer from parental abuse or neglect. In other words, Oregon DHS should have done its job.
Amazingly enough though, Judge Leonard didn't return Noah to John and Lisa; he returned him to his grandparents in Calgary. How that makes sense is anyone's guess, but it looks suspiciously like a judge trying to make himself look like a little less of a fool than most people probably think. He actually maintains the fiction that the Kirkman's household may not be the best thing for Noah, although he doesn't mention why it wouldn't be.
Whatever the case, I have a couple of pieces of advice for the Kirkmans. First, once your son is beyond the jurisdiction of the Oregon court, bring him home to your house. He can see his grandparents any time and he'll be beyond the reach of Judge Leonard's draconian grasp.
Second, talk to an Oregon attorney about suing the state's DHS under Oregon's tort claims act. My antennae tell me that there was a lot of negligence involved in the decision to take your son. And you can count on a sympathetic jury. Almost every one on it will sit in court listening to the evidence while the sentence "there but for the grace of God go I" runs through his/her head.
Thanks to Charles and Lawrence for the heads-up.
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One Woman’s False Rape Claims Cause One Suicide and Almost a Second
May 30, 2010
In the United Kingdom, as elsewhere, there's a certain group of people for whom rape laws aren't strict enough. They cite figures that show that only a small percentage of rape allegations result in conviction. They cite those figures because they want us to believe that rape allegations are easy to defend, that prosecutors and judges don't take the charge seriously, etc.
But that's far, far from the truth. In fact, the reason that so few rape allegations result in conviction is that there's so little actual evidence to back them up. Often, the claimant retracts her claims. In Dr. Eugene Kanin's study in the U.S. 50% of all rape allegations made to the police were withdrawn by the claimant as false. Of those that aren't admittedly made-up, surely others are also false, just not demonstrably so. And yes, it probably can be difficult to get a conviction where there is no corroborating evidence to support the charge.
But for the "believe the woman" crowd, men get all the breaks and police and prosecutors are loath to try a rape case.
Well, this case should put to rest those arguments once and for all (Daily Mail, 5/25/10). (OK, I know it won't, but it should.) While reading the facts of the case, ask yourself "if this is the type of case that goes to trial, how lacking in evidence does a case have to be to be dismissed?" Maybe the judge can throw some light on the question.
Judge Patrick Robertshaw launched a stinging attack on the Crown Prosecution Service for making Mr Fadayomi stand trial.
He said: 'The evidence did not, and was never going to, prove rape. The prime overriding consideration in the CPS's decision had been merely that the complainant wished the case to go ahead.
'It was little short of a craven abdication of responsibility for making an independent and fair-minded assessment of the case.
'It is quite astonishing these decisions are made by those who simply do not have experience of what happens in Crown Court because they never come into Crown Court.
'They sit behind desks and make decisions that result in this sort of trial taking place.'
Let me repeat one part of that for the "believe the woman" crowd: "The prime overriding consideration in the CPS's decision had been merely that the complainant wished to go ahead." See? Experienced attorneys abdicated their responsibility to evaluate the facts of the case in favor of doing whatever the complaining witness desired. I dare you to show me anywhere else in the law that that would happen.
And who was that witness? Well, we'll never know. That's because she cried rape and that one act will forever cloak her in anonymity. The next man she targets for a life in prison will have no idea that she's leveled false rape allegations before. He'll go out with her, enjoy their date, take her back to his apartment and sleep with her, never knowing that, as soon as she can manage it, the police will be knocking on his door and his life will be forever changed.
That, you see, is what happened to medical student Olumide Fadayomi. Ultimately, after months of emotional turmoil sitting under her sword of Damocles, Fadayomi was acquitted, prompting judge Robertshaw's rebuke to the Crown.
But another man was not so fortunate. That's because, while Fadayomi only contemplated suicide while awaiting trial for a very serious crime that he did not commit, a previous man actually took his own life after the same woman had charged him. He did so despite the fact that the case was dropped as "lacking in credibility."
A jury took only 45 minutes to clear medical student Olumide Fadayomi, 27, of rape. But several jurors at Sheffield Crown Court broke down in tears when the judge revealed the 'victim' had a history of crying rape.
So the next time the "believe the woman" folks try to convince you that rape allegations aren't taken seriously, remind them of the jurors who wept and of the innocent man who killed himself, not because he was guilty, but because he was charged.
Meanwhile, what's not taken seriously are false rape claims. Who is this woman? We'll never know because even though she's a serial liar, she's protected. She's protected to accuse again and again and again, for as long as she likes. Will she be charged as the criminal she is? There's no indication of that. Will she be made to pay damages to Fadayomi? Who knows? Withn the past 16 months, we've seen one British man denied the right to sue his false accuser, so my guess is she'll get away scott free.
I don't know British law on the subject of "hate" crimes, but men falsely accused of rape in the United States should seriously consider bringing charges based on that. One of the categories that makes a regular crime a "hate" crime is that it's based on gender, and false rape claims can't be based on anything but.
Thanks to Jeremy for the heads-up.
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Ninth Circuit: CPS Must Tell Dads of Allegations of Abuse
May 30, 2010
Here's a new case out of California that doesn't do the dad any good, but it will help dads in the future (Leagle, 5/26/10). It's a Ninth Circuit Court of Appeals opinion, so it affects parents in Washington, Oregon, California, Alaska, Arizona, Hawaii, Montana, Idaho and Nevada.
It holds that a father with joint legal custody but with no physical custody (i.e. visitation rights) of his child has a right to be informed by state officials such as the police and child welfare workers when his child may be suffering abuse. Astonishingly enough, in the case reported, no state, county or municipal official informed the father when his daughter complained of sexual molestation by the father of her mother's boyfriend, physical abuse by the boyfriend or the boyfriend's attempt to coerce her testimony.
Daniel James and Gail Sherman had a daughter, whom the court's opinion refers to only as C.J. because she's a minor. Sherman had physical custody and James had visitation. Sherman lived with her boyfriend, Shawn Blair. In February, 2003, C.J. complained to her maternal grandmother that Blair's father had sexually molested her, the grandmother reported the allegation to the sheriff's office who reported it to Child Protective Services. CPS interviewed the girl and Blair's father was charged with a criminal offense. Apparently Blair didn't take kindly to that and allegedly hit C.J. as well as Sherman. He also, according to C.J. attempted to coerce her into changing her testimony.
During all of that, James was completely unaware that anything out of the ordinary was going on. In other words, over a ten-month period, Sherman didn't tell him, CPS didn't tell him, the Sheriff's Department of Nevada County didn't tell him and the police department of Grass Valley, California didn't tell him. Finally, in December, C.J. told him and James immediately went to court to try to get a change of custody. He got temporary custody, but ultimately the family court gave custody to C.J.'s maternal grandmother.
James sued various state, county and municipal officials under our old friend 28 U.S.C. Sec. 1983 for violations of his civil rights, principally, his Fourteenth Amendment due process right "to participate in the care, custody and management" of his child. The trial court ruled that the police and CPS officials had violated his rights, but tossed out his case anyway because up to that time there had been nothing that clearly established those rights.
(The concept of qualified immunity in cases in which a state official is a civil defendant is what got the James defendants off the hook. It holds that public officials can only be liable to civil claimants if they violate a right that's well known and well established. That's a sensible ruling. To make public officials pay for violating rights they can't reasonably know exist would clearly place them in an untenable position. Anything they do could result in a "gotcha" lawsuit later.)
Still, the opinion gives us a pretty clear picture of the mindset of CPS employees and police in James's case. Think about it; you're a CPS worker and you get a case in which a girl says she's abused by the father of her mother's boyfriend. You've got a choice - to tell the father or not. What does it say about a person whose job is children's welfare but who doesn't inform the father?
It turns out that the trial court had something to say about that.
The district court further determined that James's rights were clearly established "on the basis of common sense."
Well, what's "common sense" to a judge and, I suspect, about 90% of the rest of us wasn't "common sense" to CPS workers.
Now, let's remember that this is the same Ninth Circuit that ruled last year that a California CPS agency had violated a non-custodial father's rights when it placed his child in foster care without first attempting placement with him. And of course there's the case of a young woman who sued a CPS agency in San Diego for intentionally keeping all knowledge of her biological father from her throughout the course of her life. Add to all that the fact that the Urban Institute has found that CPS agencies across the country routinely fail to check with fathers before placing children in foster care, and you have a pretty good idea of how CPS workers think.
And in Daniel James's case, once CPS employees grew concerned about what was going on at Gail Sherman's house, they,
gave her five options for ensuring C.J.'s safety during the molestation trial: make Blair leave the home so that C.J. could remain there; allow C.J. to live with Proano (the grandmother) without any CPS involvement; sign a voluntary agreement with CPS to place C.J. with Proano; sign a voluntary agreement to place C.J. in a foster home; or let C.J. live with her father, James.
In other words, as far as CPS was concerned, what happened was to be mom's decision. They kept information from James so that he couldn't make his own decisions and pursue his own legal remedies, and allowed Sherman to decide. Which is only to say that they allowed the mother to control the father's rights. Say, haven't we seen that before?
So the bottom line is this: Daniel James is out of luck. His suit was disposed of via summary judgment based on qualified immunity. But the reason it was disposed of - that public officials couldn't reasonably have known that their actions violated his rights - is now null and void. Now they do know; it's written in black and white by the Ninth Circuit Court of Appeals. So every future father in those states is protected from this particular depredation by CPS.
In the Ninth Circuit at least, slowly but surely, fathers are making inroads into the long history of denial of their parental rights by child welfare agencies.
Judge Reads Riot Act to Mom in Custody Hearing
May 28, 2010
A long-simmering custody battle boiled over in court Wednesday, resulting in a disgusted Judge Melba Marsh loudly telling the three adults that if they continued to act like children, that's the way she would treat them.
So obviously, there's a big brouhaha in family court with both sides pointing fingers, calling names, leveling accusations and the judge finally gets enough and let's them know how the cow eats the cabbage. She's the boss in her court and everyone had better straighten up. Right?
Well, that's what you'd think from the opening paragraph of this article quoted above, but if you read the article, it turns out that only one person was out of line - the mom (Cincinnati.com, 5/27/10). Read it closely at all and you'll see that it's far from the first time. This case is in Ohio, but she's already lost custody of the child down in Kentucky and she's on the ragged edge of doing the same in Cincinnati. She's made false allegations of domestic violence against the father of the child; she's violated an order of the family court; she's hacked into his girlfriend's computer and sent "vicious" messages to her acquaintances. That last little indiscretion got her a criminal conviction.
And read closer still and you'll see that it's not only the court, her ex and his girlfriend that she doesn't respect, it's her own lawyer too.
Gross tried to respond but her attorney, Dan Burke, told her three times - each time a bit louder - to "listen to" the judge.
That's what happens when an attorney can't control his client; he lets the judge yell at her for a while to see if that gets her attention. The description above is a classic example of a case in which the lawyer has told his client over and over again to behave better, but without results, so he's glad when the judge lays into her. Still, after the hearing,
Gross then went into the hall and argued with her attorney spouting an expletive at him.
Burke responded by telling Gross "we're done" and storming off.
This is no big deal except to the parties involved. A mother, Gross, has so alienated the family court in Kentucky that she's lost all right to see her child. Now she's moved on to Ohio where she's lost custody and has only supervised visitation. In the hearing reported on, she's close to serving time in jail for contempt of court. But still she doesn't get it. My guess is that she'll be back in court soon with a new lawyer and a new set of allegations against someone. It's everyone's fault but hers.
But as I say, this sort of thing happens every day in some family court in the nation. What's interesting is that, as detailed as the article is, the writer can't quite seem to grasp the fact that there is one and only one bad actor in this drama - Gross. Somehow the writer wanted to believe that three people had ticked off the judge. But click on the video and, while her ex and his girlfriend are present, the judge is angry with only one person. Somehow, the writer just couldn't quite say that.
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Jury Awards Man $16 Million for Ex-Wife’s False Molestation Claim
May 28, 2010
In this case, a mother's claim against her husband that he sexually molested her daughter went slightly awry. Thirteen years after the fact, a federal appellate court has upheld the verdict in his civil cause of action against her and her police officer husband. The verdict was for $14 million in compensatory damages and $1 million each in punitive damages for a total of $16 million.
Back in 1991, Ted White married Tina (whose name is now McKinley) and attempted to adopt her two children by a previous marriage. But the children's father refused to give up his parental rights, so there the issue stayed. In 1995, he had a change of heart, though, and agreed to the termination of his rights. Why the about-face? It seems that Tina had informed him that if he didn't, she'd file charges of child sexual molestation against him. Too bad Ted White didn't know that.
Because about a year later, his marriage to Tina was on the rocks and, unbeknownst to him, she was seeing another man. That man was Richard McKinley, a police officer for the Lee's Summit police department. Apparently, they hatched a plan to get White out of their lives and those of the children for whom he was the adoptive parent.
Tina charged him with sexual molestation of her daughter, Jami, and who do you suppose investigated the matter for the police? That's right, Richard McKinley. And during his investigation, certain exculpatory evidence went missing. That included Jami's diary in which the girl said she thought White was a great dad and that he was more caring about her than was her mother. After Tina leveled her charges at White, McKinley also interfered in Jami's interview with the Center for Protection and Children that's charged with interviewing children in molestation cases.
White was convicted, fled to Costa Rica, was captured and spent over five years in prison successfully appealing his conviction. First, he discovered the withheld evidence and got a new trial. That resulted in a hung jury that voted 11-1 for acquittal. On retrial, he was acquitted. He then sued his former wife, her current husband Richard McKinley and the City of Lee's Summit. The city settled out of court and the jury found both Tina and McKinley liable to White and awarded damages. Because he was a police officer acting under color of law, the suit was for violation of White's civil rights under 28 U.S.C. Sec. 1983. (We've seen that little gem used to sue the State of California for denial of parental rights for bypassing a father and placing a child in foster care.)
White has already gotten paid by the City of Lee's Summit, although how much we don't know. Will he ever see a dime from the happy McKinley couple? I doubt it, although he may agree to be paid off with a few cents on the dollar. Still, it's an instructive tale. False allegations are not legal. Prosecutors aren't often interested in pursuing them in criminal court, but individuals always have the civil courts in which to try to gain some form of justice.
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New Minnesota Program Tries to Lower Divorce Rate
May 27, 2010
Here's an idea whose time has come (Washington Times, 5/25/10). Actually, it came a long time ago, but better late than never. It seems the State of Minnesota is starting a program to try to reduce the divorce rate by offering services to married couples who want to try to save their marriage rather than divorce.
It's called Minnesota Couples on the Brink and is open to all on a voluntary basis. It seems to be free to the couples and is funded by a $5 fee on marriage licenses. The idea came from a study done at the University of Minnesota by William J. Doherty who's a family studies professor there. Doherty got information from 2,500 couples who had attended a mandatory divorce counseling program in Hennepin County. He found that about 30% of divorcing couples had one spouse who didn't want the divorce and another 10% were open to trying to resolve matters. That suggests that making services available could save marriages, which is important, particularly where children are concerned.
The services will consist of a "marriage coach." Part of that job apparently will be to acquaint couples with the realities of life during and after divorce.
"The judicial system tends to increase conflict, not decrease it," said state Sen. Steve Dille, lead sponsor of the law.
That's one we've heard before, principally because it's true. In fact, one of the main goals of the 2006 amendments to Australia's Family Law Act was to try to short-circuit via mediation the pernicious effects of the adversary system on families. It's not the first time and it won't be the last that jurisdictions try to take matters out of the hands of lawyers. When Australia tried recently to evaluate the amendments, it found that couples liked the mediation provisions very well, but lawyers didn't. As Gomer Pyle would say, "Surprise, Surprise, Surprise!"
So Minnesota will try to redirect "couples on the brink" away from divorce and toward reconciliation. I'll be interested to know exactly what the program consists of, how many people avail themselves of it and how effective it is.
The built-in problem with any such effort is that it exists smack in the middle of a divorce system that is well known to most people. That system gives a clear advantage to mothers in custody matters as much data show. The simple fact is that moms get the kids on divorce and dads pay. And that stark reality is the overwhelming reason why 70% of divorce cases are filed by women. That's the specific finding of a massive study done by Margaret Brinig and Douglas Allen of every divorce in four states.
So what Minnesota Couples on the Brink will be fighting against is the same thing that plagues mediation or any other program aimed at slowing the divorce rate - the realities of divorce and custody law. A mother who's had it with her husband and who knows that if she divorces him, she'll get the kids, the house and the child support, is a tough person to convince not to file. Why wouldn't she?
If states want to reduce their divorce rates, they'll move aggressively to equalize mothers' and fathers' rights in family courts. They'll make sure that equally shared parenting is both the law and the practice of family court judges. That way, no one will perceive that she/he has an advantage in the process of divorce and custody. Do that one thing and we'll see divorce rates drop.
Meanwhile, initiatives like Minnesota Couples on the Brink are worth watching.
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New Minnesota Program Tries to Lower Divorce Rate
May 27, 2010
Here's an idea whose time has come (Washington Times, 5/25/10). Actually, it came a long time ago, but better late than never. It seems the State of Minnesota is starting a program to try to reduce the divorce rate by offering services to married couples who want to try to save their marriage rather than divorce.
It's called Minnesota Couples on the Brink and is open to all on a voluntary basis. It seems to be free to the couples and is funded by a $5 fee on marriage licenses. The idea came from a study done at the University of Minnesota by William J. Doherty who's a family studies professor there. Doherty got information from 2,500 couples who had attended a mandatory divorce counseling program in Hennepin County. He found that about 30% of divorcing couples had one spouse who didn't want the divorce and another 10% were open to trying to resolve matters. That suggests that making services available could save marriages, which is important, particularly where children are concerned.
The services will consist of a "marriage coach." Part of that job apparently will be to acquaint couples with the realities of life during and after divorce.
"The judicial system tends to increase conflict, not decrease it," said state Sen. Steve Dille, lead sponsor of the law.
That's one we've heard before, principally because it's true. In fact, one of the main goals of the 2006 amendments to Australia's Family Law Act was to try to short-circuit via mediation the pernicious effects of the adversary system on families. It's not the first time and it won't be the last that jurisdictions try to take matters out of the hands of lawyers. When Australia tried recently to evaluate the amendments, it found that couples liked the mediation provisions very well, but lawyers didn't. As Gomer Pyle would say, "Surprise, Surprise, Surprise!"
So Minnesota will try to redirect "couples on the brink" away from divorce and toward reconciliation. I'll be interested to know exactly what the program consists of, how many people avail themselves of it and how effective it is.
The built-in problem with any such effort is that it exists smack in the middle of a divorce system that is well known to most people. That system gives a clear advantage to mothers in custody matters as much data show. The simple fact is that moms get the kids on divorce and dads pay. And that stark reality is the overwhelming reason why 70% of divorce cases are filed by women. That's the specific finding of a massive study done by Margaret Brinig and Douglas Allen of every divorce in four states.
So what Minnesota Couples on the Brink will be fighting against is the same thing that plagues mediation or any other program aimed at slowing the divorce rate - the realities of divorce and custody law. A mother who's had it with her husband and who knows that if she divorces him, she'll get the kids, the house and the child support, is a tough person to convince not to file. Why wouldn't she?
If states want to reduce their divorce rates, they'll move aggressively to equalize mothers' and fathers' rights in family courts. They'll make sure that equally shared parenting is both the law and the practice of family court judges. That way, no one will perceive that she/he has an advantage in the process of divorce and custody. Do that one thing and we'll see divorce rates drop.
Meanwhile, initiatives like Minnesota Couples on the Brink are worth watching.
State Senator Sal DiDomenico Sworn In At The Massachusetts State House
May 27, 2010
Fathers & Families President, Ned Holstein, and Executive Assistant, Kristin Sedgwick, recently attended the inauguration of former Everett City Councilor and newly elected state senator, Sal DiDomenico. Senator DiDomenico was the winner of a special election held on May 11 to replace former Senator Anthony Galluccio.
Fathers & Families’ shared parenting bill was an issue in the campaign. DiDomenico, who worked in the State House as Chief of Staff to former Senator Galluccio, supported HB 1400 and was well-versed in the details of the issue.
Fathers & Families now officially has another ally in the Massachusetts Legislature and we look forward to working closely with the senator on issues such as shared parenting.
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State Senator Sal DiDomenico Sworn In At The Massachusetts State House
May 27, 2010
Fathers & Families President, Ned Holstein, and Executive Assistant, Kristin Sedgwick, recently attended the inauguration of former Everett City Councilor and newly elected state senator, Sal DiDomenico. Senator DiDomenico was the winner of a special election held on May 11 to replace former Senator Anthony Galluccio.
Fathers & Families’ shared parenting bill was an issue in the campaign. DiDomenico, who worked in the State House as Chief of Staff to former Senator Galluccio, supported HB 1400 and was well-versed in the details of the issue.
Fathers & Families now officially has another ally in the Massachusetts Legislature and we look forward to working closely with the senator on issues such as shared parenting.
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Australian Study Asks Children Their Ideas About Custody
May 27, 2010
In my last piece I discussed the frankly false and misleading article in an Australian newspaper "about" a study done by Dr. Alan Campbell of the University of South Australia. Unlike the article, the study itself is quite interesting. Sadly, I can't provide a link, but the article can be found in Child Care in Practice, 7/1/08.
It's a very small study, and therefore shouldn't be considered as representative, but its findings suggest avenues for future research and possibly for future changes in family court practices.
Dr. Campbell and his colleagues conducted in-depth interviews with 16 children, between the ages of seven and 17, of divorced or separated Australian parents. The study isn't clear about the parenting arrangements the children were in, but at most two of the sixteen and more likely only one had parents who had an equally-shared parenting arrangement. (That fact alone debunks the claim of Adelaide Now that the study found that shared parenting is "detrimental to children." Put simply, it doesn't deal with shared parenting at all.) They wanted to find out three basic things:
1. How are children’s views of themselves in relation to adults reflected in their comments about their ability to participate in decisions that directly affect them following their parents’ separation?
2. To what extent do children’s interview texts reflect an understanding about rights and children?
3. How do children construct an understanding of the concept of their ‘‘best
interests’’ in relation to post-separation decision-making about their futures?
Campbell refers to previous studies that found that, for the most part, courts have tended to ignore children's ideas, thoughts and concepts about divorce, separation and custody. That stems from a traditional attitude on the part of adults that they know better than children what is in the "best interests of the child."
What Campbell learned from the children interviewed is something else entirely. First, without exception, the children wanted to talk about this. Interviewers were prepared to provide various activities for the children to engage in as part of the interview process, but the children declined the invitation, preferring to talk about the topic - divorce, separation and child custody. In short, the kids were serious about this.
Contrary to popular belief, the children in his study had rather clear ideas about what was going on in their parent's separation, and some definite desires about the process and outcomes. For example, essentially all the children wanted to have some input into the decisions that were being made about their lives. That's not to say they wanted the final say-so; they didn't. But, in the parlance of the day, they wanted their voices to be heard.
Indeed, in exploring the children's thoughts about 'rights', it turned out that a lot of that very concept involved being listened to. The kids wanted to be consulted and considered that to be their 'right.'
When the topic turned to the "best interests of the child," they once again asserted that being consulted about custody, living arrangements, etc., should be part of the concept. In other words, courts, in striving to act in the "best interests of the child" tend to ignore one of the main things that children think is in their best interests - having a voice in the matter. The children wanted to change that.
But what's in the child's best interests - at least according to the children interviewed - is broader than simply being listened to. They placed a high value on fairness to their parents and to themselves. In fact, they described the practice of "awarding" primary custody to one parent as unfair to both the non-custodial parent and the child.
Interviewer: What do you think about the idea of someone like a judge deciding where children should live?
Olivia: Oh, well, I don’t think that would be very fair, because the child . . . if
they just have to live with their dad, or they just have to live with their mum, it wouldn’t be very fair on both of them . . . . I don’t think it would be very fair on the mum or the dad, because they choose when they see, when the kids see them. (Olivia, nine years old)
And,
Interviewer: What do you think about the idea of someone like a judge deciding where children should live?
Ellen: Not very nice. Cos if they want to live with their dad and they were
living with their mum and they had to stay with their mum and they didn’t want to, it wouldn’t be very fair. (Ellen, nine years old)
So what we learn from this is that the children wanted the process to result in fairness and that the practice of primary custody/visitation doesn't meet that standard. To them, it's not fair. Interestingly enough, in another article, Dr. Campbell suggests that this desire for fairness in custody decisions should be considered a necessary part of the concept of the "best interests of the child." That is, only a fair custody arrangement could satisfy the law's requirement that the courts act in the child's best interests.
Last, the children tended to view outside experts appointed by courts, such as social workers, psychologists, etc., as interfering in the process rather than serving it. To them, family members, including those of the extended family, should make decisions about custody. This came, as Campbell writes, from "their understanding of the family as a 'complete' unit, a source of support and nurturance, and their loyalty to this ideal." Any input from outside that unit was suspect to the children and presumptively less legitimate than the advice and counsel of family members.
I don't argue - and neither did the children - that all of this is to be taken at face value. Indeed, many of the children - 13-year-old Nick in particular - displayed fairly nuanced views and understandings of what they were talking about. They didn't paint with a broad brush, but rather saw that each situation is different and demands its own careful consideration. Their emphasis on the family as the primary decision-maker, for example, could prove unworkable in dysfunctional or highly-conflicted families.
Still, Campbell's study, limited though it may be, provides rich food for thought. If it teaches us only one thing, it is that children have valuable insights into their families, their parents and their desires about custody and living arrangements post-divorce or separation. We should ask them for their thoughts, and listen to what they say.
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