The Voice of the Child in Separation/Divorce Mediation and Other Alternative Dispute Resolution Processes: A Literature Review

3.0 WHAT DOES CHILDREN'S PARTICIPATION MEAN? (Part 3)

3.3 Existing Child-Inclusive Mediation and Other ADR Delivery Processes

American Perspectives

Mediation is also practiced widely throughout the United States, in both the public and private sectors, and is undoubtedly the most widely researched form of intervention used for parents involved in separation and/or divorce (Emery, Matthews and Kitzmann, 1994; Emery, Matthews and Wyer, 1991; Kelly, 2002, 2004; Sbarra and Emery, 2008). Folberg, Milne and Salem (2004) describe different types of mediation services and models of mediation (i.e., facilitative, transformative, evaluative, and therapeutic) that are offered in both private practice, court-connected centers, social service agencies, clinics, as well as community mediation centers. However, the degree to which children are involved in court-connected or community-based mediation centers remains unclear, as well as when, and, if so, how.[40]

In the private sector, many psychologists and child related specialists have brought children into the mediation process, before, during and after as previously described (Johnston and Campbell, 1988; Kelly, 2002; Sanchez and Kibler-Sanchez, 2004; Sapsonek, 2004, Shienvold, 2004). Increasingly, parenting coordination, which is practiced more widely in the United States than any other jurisdiction, is meant to assist high conflict families with the assistance of a mental health clinician, to work with both parents on implementing their parenting plan (Boyan and Termini, 2004; Coates et al. 2004). Yet, as previously mentioned, the level of children's participation in this process varies and is not automatically included.

There are countless programs for parents and children that provide a psycho-educational component, assessment and counseling (Homrich, Glover, and White, 2004; O'Connor, 2004).[41] While many of these excellent programs provide important information and assistance to parents and their children experiencing separation and/or divorce, children's participation is focused on obtaining information, rather than participating fully and having a "voice" into the parenting arrangements that are about them.

In 2002, the Association of Family and Conciliation Courts (AFCC) organized its annual conference focusing on the theme of children's participation. A survey was conducted with the participants asking them to rate eight methods of obtaining the voice of the child. The eight methods rated were:

  • (1) child testifies in court;
  • (2) child provides an out-of-courtroom deposition with the other lawyer;
  • (3) child is interviewed by a judge;
  • (4) child signs an affidavit with a lawyer to submit to court;
  • (5) child expresses views to an amicus curiae/attorney ad litem who presents their views to the court;
  • (6) child is interviewed privately by a mental health clinician who consults with the parents and may also interview the child with the parents, if helpful;
  • (7) child is interviewed by a mental health custody evaluator who the testifies in court about what is in the child's best interest; and
  • (8) child participates in mediation, either privately or with both parents.

A total of 530 participants rated these eight different methods on a scale from one to 10, with 10 representing a healthy way of including children, and 1 representing an approach that is emotionally damaging to children. The participants rated method number (6)—child is interviewed privately by a mental health clinician who consults with the parents and may also interview the child with the parents, if helpful—as the healthiest way to hear the child's voice and method number (1)—the child testifies in court—as the most damaging way to hear a child's voice (Yingling, 2005).

Texas is the only State that has a law[42] providing for a child (12 years and older) to sign an affidavit identifying the child's preference for which parent s/he will primarily reside with, subject to the approval of the court. In part, due to the AFCC survey discussed above and other lobbying efforts, Texas law changed in 2005 to include a focus on parenting plans and to authorize the use of mental health professionals to coordinate and facilitate the implementation of parenting plans. In addition, a revision to the Family Code was made to be more consistent with the social science and empirical research (Yingling, 2005).

As in many jurisdictions, child custody and access assessments exist in every state. They are conducted in both the public services as well as by private practitioners. Children are interviewed as part of the custody and access assessment. As noted previously, these assessments are time consuming and intrusive in the lives of children and families. The courts have also explored alternative types of interventions that are commensurate with different levels of conflict and risk in an effort to better meet the needs of families and the courts (Finman, Fraser, Silver and Starnes, 2006; Salem, Kulak and Deutsch, 2007). For example, in the 20th Judicial Circuit of Florida, there is the Sieve Model. This model focuses on conflict resolution and differentiates services for families that range between high and low conflict families (i.e., intensive therapeutic support, a child custody and access assessment, mediation, parenting education, and other mental health coaching) (Finman et al. 2006). There are also fast track evaluations or what is also referred to as mini evaluations[43], or issue-focused evaluations. These types of evaluations are meant to examine a specific issue (i.e., supervised to unsupervised access, parenting time) rather than conducting a full child custody evaluation in the courts in Connecticut, Los Angeles, Oklahoma, Minnesota and Texas. However, the level of children's participation varies according to the characteristics of the case (Little, 1997).

In the Connecticut court services, there are five primary services that are offered to disputing families. They are:

  • (1) negotiation services (disputes over access, finances, property contempt motions, etc.);
  • (2) mediation services;
  • (3) conflict-resolution conference;
  • (4) issue-focused evaluation; and
  • (5) comprehensive child custody and access evaluations.

More recently, the court in Connecticut has embarked on establishing a more evidence-based approach to servicing families according to a triaging system or a tiered services model. Families start with the least intrusive service (i.e., divorce education) and then move to the next tier of services if they cannot resolve the dispute. The services become more investigative as families move through the tiers (i.e., mediation, child custody evaluation, a moderated settlement conference and, if necessary, a trial) (Salem, Kulak and Deutsch, 2007). An intake and assessment instrument, called the Family Civil Intake Screen[44], has facilitated the effectiveness and efficiency of the referrals to the various tiered services. Research on this instrument has been ongoing since 2004. To date, there is support for the overall effectiveness of the Screen and the ability to match families to appropriate services (Salem, Kulak and Deutsch, 2007). Long term data analysis of the efficacy of the Family Civil Intake Screen is ongoing.

In Arizona, Markan and Weinstock (2005), two psychologists in private practice, also identify other types of child custody evaluations that range from a comprehensive child custody evaluation, a problem-focused evaluation (addresses a specific question), a dispute assessment (addresses assessment issues identified in state statutes), a child development evaluation (addresses the relationship between the child's needs and custody/parenting time decisions), a child forensic interview (a videotaped interview of the child by a child specialist focused on exploring a specific issue such as child sexual abuse or the child's preferred residential arrangement), and an emergency case stabilization (aimed at stabilizing a dangerous parent-child situation providing appropriate referral for treatment).

Many of these different types of child custody and focused evaluations have resulted from the exploration of alternative means to assisting families and children post separation and/or divorce. However, children's participation and their actual input into the decision-making remain less clear.

In addition, children's lawyers can also be appointed throughout the United States. There are two types of children's lawyers that the American Bar Association has adopted as its standard for lawyers representing children (Standards of Practice for Lawyers Representing Children in Custody Cases, 2003).[45] These are:

  • (1) the best interest attorney (independent assessment of what is in the child's best interest and advocate for that position; and
  • (2) child's attorney (traditional attorney-client relationship providing the child with a strong voice in their parents' dispute).

Some courts also provide for a guardian ad litem to report to the court or testify about the child's best interest. However, this latter role is not a role of the lawyer under the Standards of the American Bar Association.

International Perspectives

Australia

Since 1999, Australia has taken the lead in providing empirically-based child-inclusive practice approaches with children (Hewlett, 2007; Mackay, 2001; McIntosh, 2000, 2003, 2005; 2006, 2007; McIntosh, Bryant and Murray, 2008; McIntosh and Deacon-Wood, 2003; McIntosh and Long, 2005, 2006, 2007; McIntosh, Long and Moloney, 2004; McIntosh, Wells, Smyth and Long, 2008; McIntosh, Wells, and Long, 2007; Moloney, 2005, 2006; Moloney and McIntosh, 2004).

Framed as a public health crisis regarding the psychological needs of children during family breakdown (Amato, 2006; Emery, 2001; Kelly and Emery, 2003; Lamb, 2002/2003), considerable research funding and support have been provided by the government to explore evidence-based practice models that include the voice of the child post separation and/or divorce. Consequently, children have greater involvement in decision-making in Australia.

In addition to the research agenda, Australia provides four different tiers of services:

  • (1) family relationship centers, where every family receives up to 6 hours of education and mediation (whereas families that are not considered suitable for mediation go through the court stream);
  • (2) family relationship services that provide for community-based mediation on a sliding scale based on the parents' income;
  • (3) court services for highly intractable disputes (a child consultant interviews the child and will testify at the court, if necessary); and
  • (4) child legal representation. The premise behind each service is based on empirical evidence that targets both risk and resiliency factors for children post separation and/or divorce.

There is also the Children's Cases Program (CCP), which adopts a different court model for determining child custody and access matters. This program has also been called The Less Adversarial Trial where the judge maintains control over what issues will be dealt with, what evidence will be called, and the way in which the evidence will be received by the court. Other features of this approach include:

  • (1) a focus on the future rather than the past;
  • (2) a less formal court atmosphere where lawyers are not wearing robes;
  • (3) direct discussions between the judge, parties, the parties' lawyers, and the family consultant (mediator);
  • (4) the possibility that the judge may dispense with the rules of evidence; and
  • (5) the availability of a family consultant to assist throughout the litigation stage.[46]

McIntosh, Bryant and Murray (2008) have evaluated the Less Adversarial Trial/CCP and the Child Responsive Program (CRP). The CRP program is a front-end service where parents are assigned a family and child consultant early on in the process who provides education, a preliminary family assessment, and a child-inclusive approach.[47] Pilot findings for the CCP program four months after the intervention have demonstrated that parents were significantly more likely to report better conflict management, less damage to their co-parental relationship, greater parent-child satisfaction with the living arrangements, and improved adjustment of the children. The CCP was contrasted with the experience of parents in a traditional adversarial group. This latter group found the court process neither helpful nor was it reparative of the co-parental relationship. Pilot findings for the combined CRP and CCP program demonstrate that the majority of parents (67 per cent) reported improved protection of the children with respect to their conflict as a result of CRP, increased overall levels of cooperation between parents after court, and decreased levels of conflict between parents after court. McIntosh, Bryant and Murray (2008) conclude that results of the combined CRP and CCP provide encouraging results to foster less adversarial approaches for parents and children.

The children's lawyers in Australia advocate the best interest position on behalf of children. That is, they not only provide the court with the child's views, but also take an independent view of what constitutes the child's best interests and act upon it. The children's lawyers can disclose to the court any information that is shared by a child even if the child disagrees.[48]

Finally, as a means of dealing with access-based difficulties, a hybrid program was also initiated in 1999. This pilot program (Contact Cases Program) included parent education, children's groups, individual counseling, mediation, and where appropriate, referrals to supervised access for high conflict families.[49] Children provide feedback to their parents about their feelings. The government has provided ongoing funding for this service since 2005.

New Zealand

In New Zealand, there are mental health professionals who provide child custody and access assessments. In addition, a child-inclusive mediation model was piloted in 2006 aimed at addressing the dispute much earlier in the breakdown of the parental relationship (Goldson, 2006). Intractable custody and access disputes, domestic violence cases and cases involving mental health problems were excluded from the study. Qualitative results demonstrated that children and parents clearly benefited from this approach.

Similar to the Australian Less Adversarial Trial, the Parenting Hearings Program[50] has been running for the last two years in New Zealand. However, unlike the Australian program, the mediator in the Parenting Hearings program is not present during the hearings. An evaluation is forthcoming on this approach. Some judges have also interviewed children during this process.

New Zealand also provides the most extensive child legal representation for children under its Care of Children Act, 2004. The lawyers' responsibilities include:

  • (1) explaining the court process to the child;
  • (2) representing the child in all facets of his/her care and custody;
  • (3) putting the child's views and all relevant issues about the child before the court; and
  • (4) meeting with the child after the judge has made his or her decision.[51]

With respect to their role as compared to other jurisdictions that have been discussed, the lawyers for children in New Zealand fall between the traditional advocate and the best interests advocate. The New Zealand government has committed itself to providing child legal representation so that the child's voice in custody and access matters is heard before the court. New Zealand is currently exploring how best to involve children in decision-making in a way that honours their voice but also keeps them safe from parental conflict (Boshier and Steel-Baker, 2007).

Scotland

In Scotland, as elsewhere throughout North America and England in the early 1980s, conciliation services that focused on working with parents in an effort to resolve their disputes at family breakdown were developed. Today these services continue in one form or another. However, despite the positive benefits of child-inclusive practices in Edinburgh during the 1980s, few mediators or lawyers are prepared to include children in discussions about their parent's dispute presently.

In addition, other publicly funded services such as child custody assessments and some forms of child legal representation are provided (Garwood, 1990; Marshall, Tisdall, and Williams, 2002; Tisdall et al., 2002).

More recently, research on incorporating children's views has been ongoing under the Children (Scotland) Act, 1995 (Hill, Lockyer, Morton, Batchelor, and Scott, 2000; Marshall, Tisdall, and Williams, 2002; Tisdall et al., 2002). The Act provides a strong focus on having children's views made known to the court when parents separate and/or divorce. For example, a lawyer can assist the child(ren) to complete an F-9 Form, that allows them to express their views to the judge.[52] Alternatively, a lawyer can also write to the judge on the child's behalf or may apply to add the child(ren) as a party to the proceeding.[53] Children who are under the age of 16 years and who have the legal capacity to instruct their lawyers may do so. Legal aid is available for children in family disputes to obtain independent legal advice. Children's participation is also canvassed through assessment reports prepared by social workers or curators ad litem (Murch, 2005).

England

In England, the Children and Family Court Advisory and Support Services (CAFCASS: mental health professionals) provides written child custody assessments in disputed custody matters and in some cases, provides for child legal representation (Douglas, Murch, Miles, and Scanlon, 2006; Murch, 2005). The role of CAFCASS workers is to:

  • (1) provide safety and promote the welfare of children;
  • (2) give advice to family courts;
  • (3) make provision for legal representation of children; and
  • (4) provide advice, information, and support to children and families (Murch, 2005).

A limited pilot project ran for approximately one year in 2004 that provided for an initial risk assessment of the issues in dispute, a parent education program, and a dispute resolution process that focused on the parents. The voice of the child was included through interviews with a mediator who provided feedback to the parents after the parents' first mediation session. The pilot project did not continue as there was no consensus by the professionals or parents involved as to when to interview children in the process.

More recently, family policy in England encourages parents to attend mediation and other ADR processes as early as possible to resolve issues in a more informal manner which may be more beneficial to them and their children in the long run (Mantle, Leslie, Parsons, Plenty and Shaffer, 2006). Parents and their children move through four distinct stages where they can attempt to resolve their issues at any stage. These are:

  • (1) early intervention (CAFCASS receives family law documents);
  • (2) casework (conduct assessment reports);
  • (3) court hearing (a CAFCASS worker recommends a parenting plan based on assessment and provides the necessary referrals for the child and family); and
  • (4) court decision.[54]

However, children's participation remains limited.[55]

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