A voice not a choice

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A voice not a choice

For most of the last 20 years it has been the agreed upon practise to involve children in their parents’ divorce as little as possible.  The thinking was that children were not good determiners of what was in their best interests – after all, we do not allow children to decide whether they will go to school, or eat their vegetables, or go to the dentist.  If given a choice, most children would decide to do none of those things.

In recent years, the legal profession has become much more attentive to the voices of mental health professionals in our day to day work.  Many lawyers and judges are taking training in family systems theory, and we are beginning to understand more about how the decisions we make affect the families and the children with whom we are working.  Those of us who are cognizant of such things, work actively to try to prevent causing more damage to families and children – we try to get parents to work together to make decisions that they can both live with, to understand what kinds of parenting plans work best for children of different ages and stages of development, and to reduce the exposure of the children to conflict.

One of the more interesting developments that has occurred because of the influence of the mental health professionals, is that we are seeing more involvement of children in the family law system.  We have come to realize that children have an important voice in making their parents and the system aware of what they are experiencing as a result of their parents’ divorce.  This is a recognition that children are experiencing the divorce in their own way, and we need to be alive to those experiences to make them as positive as possible.

This is a new and developing area of family law, and there is currently much discussion about how it is best for children to have their voices heard.  In British Columbia, the legal system has developed a specific paradigm to have children speak to mental health professionals and to get their input in a very formal way.  In Medicine Hat, in the last few years, our Courts have begun to appoint lawyers for children to have their input through that channel.  Colleagues Lorri Yasenik and Jon Graham have developed a method of meeting with children and getting good information from them about how their parents’ divorce is going for them, in a way that is not intrusive or divisive.

There are two very important things that we must realize when it comes to children’s involvement in this process.  Firstly, that we must find a way to do it that is not causing additional stress and damage to already very vulnerable children.  It is not simply a matter of putting the child in the center of a meeting and asking them what they want.  It must be approached in a much more child-centred way that gets them to talk about their own experiences.  Secondly, the child and all of the adults must understand that the purpose of involving the children is to give them a voice, not a choice.  Involving a child is NOT about asking them what they want, and agreeing to accept that as the final decision.  It IS about understanding how things are going for them, and working together to make it go better.

Involving the children in the family law process is still not about putting them in a position where they are choosing one parent over another, but it is about understanding how they are doing and trying to help them to do better.

Catherine Regier
Catherine Regier helps you navigate the turning points of life. She is a partner with Pritchard & Co. Law Firm, LLP. Contact Catherine at (403) 527-4411 or at cregier@pritchardandco.com.