Broken, broken, broken, is exactly how my twelve year old daughter feels as a result of our family court system. Our judicial system has failed her in essence. We have been in the family law court system for over eleven years. Her father and I got divorced when she was eleven months old. She has grown up in the “system,” where judges have determined her fate thus far. At the time of our divorce, I was granted full physical custody. Her father was given visitation for an hour and half on Tuesday and Thursday evenings. In the beginning he was fine with that as he couldn’t really be bothered with being a dad. All was well until he discovered the more time he spent with her; the less he would pay in child support. His visitation plan then changed from an hour and a half 2 days a week to overnight visits on Tuesday and Thursday and every other weekend. Her father and now step-mom became physically abusive to her. It started with a punch to her right eye when she was three years old. My daughter stated it was her father who punched her after he got mad at her. I of course called the authorities and filed an emergency ex-parte hearing to go in front of the judge in an attempt to protect my daughter. Our court hearing was two days later, and as I had the utmost faith in our court system to protect my beautiful and innocent child, I was absolutely devastated by the words spoken to me. Our judge stated as she was reviewing the police report and photographs taken by the police, “It is not enough abuse at this time. What the court is looking for is broken bones, fractured ribs, both eyes completely black and blue to reflect blunt trauma, order to remove visitation, or have supervised visits is denied.” I was left dumbfounded and in complete shock! How could the judge possibly be saying this to me? I then pulled myself together as best I could and said “your honor if a child is hit hard enough to break their bones, fracture their ribs, and cause blunt trauma to them, it could possible kill them.” She had no mercy for my daughter or the abusive father she was keeping her in the hands of. Even after the judge being aware of the three year restraining order I was granted from this man regarding domestic violence, the same man, who had been ordered by the court to do 52 weeks of batterer classes, our judge still denied my request to stop visitation, including supervised visitation.

That is the moment our judicial system began to fail us. My daughter continued to return to me with obvious adult sized hand slap marks across her face, different bruises in various places of her body, constantly crying stating that she didn’t want to go to her dad. He was mean. She would become hysterical and beg me not to make her go. I had called CPS on multiple occasions. By the time they got out to “inspect the situation” and interview her father, usually around two-three weeks later, her bruises and slap marks were gone, so they would report their findings as “unfounded” and closed the case. It has been a constant battle. Throughout my daughter’s growing up years she is still just as sad and does not want to be around her dad or step-mom. The physical abuse has ceased, but the emotional abuse she endures is very prevalent and just as bad. In some ways, it’s worse. The psychological damage that is being done to my daughter is gut wrenchingly painful, not only to her, but to me as her mother. There is nothing I can do to protect her. I have filed several motions throughout the years in an attempt to reduce his visitation only for her protection. She deserves to be in a home where she is happy, feels at peace and safe, and loved. She should never fear going to her dad’s house and be so miserable going there. Not only does my daughter deserve these things, every child does. A year has passed since I filed the last motion, this time at the request of my daughter. I spoke to a former judge of ours to ask him when she would be of age to ask the court if she could choose who she would like to primarily live with. He told me there is no certain age. There is no “magic number” that automatically makes a child capable of making that kind of decision. He advised me the court bases it off the maturity level of the child and conduct interviews by family law mediators. Given the amount of grief my daughter has gone through for all the years with her father, this was a consistent thing, her and I both felt she was ready to ask the court to hear her and to hear why she didn’t want to spend as much time at her father’s house. We were both hopeful. I filed the paperwork on her behalf and so it started. Her father and I went in front of the judge. Of course her father disagreed with the request to reduce his visitation time. We were ordered to mediation. We had that interview and then it was my daughter’s turn to be interviewed privately. She was so thrilled to finally tell her story, what has happened, and why she feels the way she does. She was hanging on to every ounce of hope that the court would hear her and make a positive change for her, especially because the way she has felt and been treated by her father has been constant her whole life. It’s not as if she just got upset with her dad over an incident and now she was acting foolishly saying she doesn’t want to be with him. This is a serious issue for her. After she was interviewed privately by the family law mediator, she felt a sense of relief and truly believed this woman was going to make a difference for her. We were both sadly mistaken when not only did she not make it better for my daughter, she made it worse. She changed the visitation plan to the same amount of time but with more consecutive days in a row she would be with her father. Instead of going to her father’s house on Tuesday and Thursday overnights and every other weekend, she changed it to Monday and Tuesday overnight, with the weekend rotation we share, it put her with her father for five consecutive days when it is his weekend. She wanted less time with her father, and she was given more days in a row. She was court ordered to six months of weekly therapy to see if that would make things better and make her enjoy being at her father’s house more. It has not worked and she feels just the same. He has not changed much. She has since been re-interviewed by the same mediator. This time the mediator agreed she is in a bad and unhealthy emotional situation and recommended to the judge to remove one overnight visit. We were hopeful about that to only have the judge say he was going against that recommendation since father is “trying.” He has set it for re-evaluation, which will require another court hearing next month. Instead of hearing the voice and plea of my daughter and adhering to the philosophy that the court has adopted of “the best interest of the child,” it appears the judge is only concerned with what is best for her father.

Before and after divorce, children need both parents to be physically and emotionally attuned, involved, and responsive in their lives, and the removal of a primary parent threatens their physical and emotional security. (James and Hynan) However, when one of the parents is causing physical harm and emotional insecurity, is it still in the best interest of the child to keep them in these conditions? The problem with our judicial system is that it’s broken. Specifically referencing family law, it is focused on the “best interest of the child,” but judges and mediators fail to realize what they think logically or educationally speaking may be the best interest of the child, can be, and many times is quite to the contrary. I know this through my own personal experience. It is not always the best for a child to be in the custody of a parent that is not good, healthy, or safe for them. Specifically focusing on family law, it deals with a variety of domestic relation matters, such as marriage, divorce, domestic abuse, prenuptial agreements, child support, and child custody and visitation. Family law cases are governed by individual state statutes. (McDavid.gov) The Constitution protects the fundamental right to parents without interference from the state. However, when parents are unable to reach a custody or visitation agreement themselves, the family law courts are left to decide child custody without the constitutional mandates, based on the “best interest of the child standard.” Most states have developed their own factors to determine which custody arrangement is in the best interest of the child. In making child custody and visitation decisions, family courts typically try to determine which parent is more likely to fulfill the child’s physical, emotional, intellectual and basic health and safety needs. (ncd.gov.) Typical factors include which parent best meets the physical, emotional, intellectual and basic health and safety needs of the child; length of the current custody arrangement and whether it is positive; whether the alternative arrangement is suitable and stable; primary care taking history; evidence of domestic violence or substance abuse; evidence of lying to the court about domestic violence or other matters; whether either placement involves a significant other with history of violence or dependency issues. The best interest analysis always allows for a parent’s own ‘health’ to be considered. “For many children, the trauma of the break-up of their family, which is one of the greatest traumas a child can endure, is even worse when they are abused or neglected by either or both parents, or extended family members who have a history of violence, substance abuse, or neglect and would never have won custody from an able-bodied parent. Such suffering has repercussions not only for the children, but for society.” (McDavid.gov) Each year the destiny of millions of children are decided in divorce, custody, and visitation proceedings throughout the United States. Custody and visitation disputes should be based on the best interest of the child, but often times does not reflect such. (Kruk)

Judges need to be guided by the very principle, of acting in the best interest for the child. If there is any suspicion that a parent may cause harm to a child in any way, the child’s contact with that parent should be restricted, controlled, or prevented. The most common case of harm is abuse. That applies not only to physical abuse, but emotional, verbal, or sexual abuse as well. If a parent mistreats a child, the courts should act to protect that child. This principle is not always well understood or followed. While most judges believe every child should always have two points of reference: one maternal and one paternal. And to deprive the child of contact with one of the parents will cause deterioration in their socialization and development. (Clemente et al.) In a healthy, loving, and supportive situation that is correct. However, in cases where children are abused it is more detrimental to keep them in the abusive situation. Children need to be heard and their safety taken very seriously. Judges are the most interested in keeping children in contact with both parents, because it is the healthiest for the child to have both parents. But judges and mediators need to understand the importance of both parents being healthy themselves to produce the result they are trying to achieve.

When children are constantly unhappy and consistently remain that way throughout the duration of their visitation time with one of their parents, the court needs to fully examine why. Children do not always know what is best for themselves, but they absolutely know how they feel and usually when someone, especially when someone as significant as a parent is treating them bad. Before courts are so quick to keep these children with equal visitation and custody for their parents, they need to follow strict guidelines and truly allow the child or children to be heard. Mediators need to be advocates for the children, as they are trained and educated in all aspects of child psychology and child development, they are the first line of defense on behalf of the child to present the information for the judge to hear the real story and to make orders that greatly affect the child. When children are troubled and for whatever reason do not want to spend time with their parent or the amount of time the court has ordered, all parties involved in family court need to hear why and truly evaluate the reason(s) why. Some solutions to this would be after the child has had an initial private interview with the mediator, they need to have continuous follow-up sessions, interviews, and to be heard. No matter how much training, education, and experience a family law mediator may have, each case is different and proper decisions that will affect the fate of children’s lives cannot possibly be heard and understood in one 30-45 minute session. The child should have several appointments to examine the validity of what the child is expressing and feeling. What they are trained to look for in one session needs to be reevaluated a few times to establish either a consistent pattern, if the child is lying, or has been “coached” by the other parent.

A solution should be put in place for these children through the Equal Parenting Plan (EPR). This presumption would provide such an incentive, with processes such as mediation and post-divorce family therapy focused on the development of a parenting plan. An EPR presumption will not work without adequate supports in place, such as, Family Relationship Centers, therapeutic family mediation, parent education programs, and parenting coordination, especially in high conflict situations between the parent and child. Not only would the support services help parents and children, but would put pressure on legislatures to develop programs that will enable parents to negotiate parenting plans that will positively affect the lives and happiness of children. The increased use of family relationship centers and family mediation services in Australia has resulted in 72% of parents now being able to resolve post-divorce parenting arrangements without the use of legal services. (Habashi et al.) Family Therapy plays a crucial role in ensuring parental breakup does not lead to family breakup by maintaining and fostering the relationship between both parents and the child following parental divorce or separation. Its role goes beyond the scope of the legal system in that it seeks to re-establish ties and open lines of communication between members of a family, to minimize the emotional burden for the child. The primary aim of the family therapists is to safeguard the child’s well-being through ongoing risk assessment to detect physical, emotional and/or psychological abuse. All cases of child abuse must be immediately reported by the family therapist or mediator to the judge who is responsible for supervising the relationship and able to make appropriate orders between the child and a parent infringing the law. A further aim of the family therapists is to actively promote change in the attitudes and beliefs of judges, prosecution lawyers, and defense lawyers to ensure the child’s well-being and best interests prevail at all times by encouraging and reinforcing conditions that enhance the child’s development with both parents. Without doubt, this combination is important in order to encourage the use of information campaigns that help the general public to distinguish among the concepts being considered in this work, and especially to encourage judges and the various agents of the court system to eliminate a point of view that undervalues the evidence that must be taken into account in the process. This will encourage judges to respond in ways that are more in line with the interests of the child. (Clemente, et al.)

Successful child raising contributes to guarantees for society’s future. Values such as composing a common quality and common benefit were highlighted by the Committee of the Rights of the Child (CRC.) This convention is one of the most important agreements so far prepared about children’s rights, accepted all around the world and aiming at the greatest benefits and welfare to children. It has been providing children with legal support expected since 1989. It is the most tangible indicator of both children’s significance and the promotion of this significance all around the world. The CRC that aims to achieve the “common good” for the children is one of these measures. CRC was adopted by the General Assembly of the United Nations on November 20, 1989, and came into force on September 2, 1990. The CRC is the first legally binding human rights treaty. All countries with the exception of the US, Somalia, and the newly-formed South Sudan ratified it. All Member States of the Europe Union ratified the Convention and committed itself to its implementation by incorporating child rights in different legal documents and communications. Mainly, every person is regarded as a child until the age of 18 and the rights of these people are taken under protection in the CRC. Children’s rights are based on the rights to make use of services and particular things, to do something freely and to have a voice in the matters that interest his/her life, to express himself/herself, to protect from violence, abuse and neglect. CRC is composed of 54 articles and includes rules that govern children’s rights in four major domains, civic, economic, social, and cultural spheres, similar to the Universal Declaration of Human Rights. As can be understood from the articles of the “Concept of Children’s Rights” and includes social, philosophical, moral, and legal dimensions. Seen from philosophical and social perspectives, children’s rights are considered under four main titles welfare rights, protection rights, adult rights, and rights towards parents. Although children’s rights are stated under different titles, it is possible to study them under four primary groups as survival rights, rights to development, rights to protection, and rights to participation. The right to survive includes the rights that provide the most fundamental needs such as to life itself. The right to development refers to the rights such as education, play, rest, information, religion, and freedom of conscience and thought. The right to protection includes rights to be protected against any kind of abuse and exploitation. When it comes to protection rights these include protecting children in the judicial system, physical, emotional, verbal, and sexual abuse. (Clemente, et al.)

Parenting behaviors that express positive and negative affect towards the children are important predictors of children’s adjustment during this transitional period including social-emotional skills and pre-academic skills. Parental expressions of warmth help young children develop behavioral self-regulatory capacities. Positive regard and warmth expressed by the parent towards the child may be especially important to examine in physically abusive parents, as maternal warmth has been found to have a protective effect that reduces the association between physical punishment and child behavioral problems. To the contrary, it is well established that parental expressions of negative affect towards the child are associated with the development of externalizing problems and lower cognitive functioning and competence. These studies suggest that parental expressions of both positive and negative affect within the parent–child relationship are important predictors of young children’s adjustment and their successful development of skills necessary to pave the way for their future. (Okado and Haskett)

Custody battles are typically parents fighting against each other in an adversarial “parenting contest,” they are encouraged to cover up or exaggerate problems in order to “win” time with their own children. When there is child abuse, substance abuse and/or domestic violence, these real problems need to be accurately identified, treatment mandatory, and appropriate protective orders made. When parents make false allegations and/or engage in alienating behaviors, these also need to be identified, treatment required, and appropriate protective orders made. However, judges or mediators need to keep the child’s best interest in mind. Yet most judges, lawyers, and court-related counselors are not sufficiently trained to diagnose these mental health issues and get those in need into proper treatment. Instead, family court becomes a meaningless contest of opinions, spin and anger for the 10-20% of divorcing families who need help the most. They become known as “high-conflict” families, because they are not understood and are trapped in a contest rather than a true problem-solving environment. Parents, and their friends, family and other allies, don’t understand what is happening to them in this contest and believe that the professionals must simply be corrupt, greedy, biased, stupid and uncaring. What should be done is to eliminate the parenting contest. Listen to both parents fairly, but to listen to the child and take their feelings, and emotions into great consideration. There may need to be temporary supervised orders in place to protect the physical and emotional welfare of the child. Children should come first, not parents. It should not be a “winner” and a “loser” among parents. The “winner” should be the child in all cases. Rather than having a contest to determine who is the “better parent,” the family court process should encourage both parents to be the best parents that they can be, which will ultimately affect the child and possibly make the child want to spend more time with the parent that has caused them to be so unhappy in the first place. This means that both parents and children involved need to be treated with empathy and respect, no matter how badly they have behaved in the past. The focus needs to be on the future, on treatment where appropriate and protection where necessary.

Judges, lawyers and court-involved therapists need more training in helping children with emotional health problems. Unlike physical illness, most emotional health problems can be covered up or completely misunderstood for some period of time. Today’s “high-conflict” parents need help, most importantly the children. Children need to be heard and removed from their bad home environment, or at the very least, have every effort and attempt made to make them feel safe, loved, and supported. Judges and mediators need more education on how to truly help these children and understand what the true meaning of the best interest of the child means. Today’s family courts need to focus more on the children, not the parents, to make the situation for the child a more positive and fulfilling one, and making protective orders when necessary. (highconflictinstitute.com.) When a child is truly unhappy and does not feel safe spending the amount of court ordered time with a parent, the court needs to take that very seriously and do what they can to make changes for the children. Forcing a child to have visitation with a parent that is causing the stress, anxiety, depression, or emotional unhealthiness, can lead to further destruction and affect them for the rest of their lives. The safety, health, and well-being are the utmost important for children. They are the ones who need the most protection and to be heard more so than the parents. Our judicial system needs to update their systems and guidelines to protect children and but their safety and well-being first.

 

Works Cited:

Clemente, Miguel, et al. “Judicial Decision-Making in Family Law Proceedings.” American Journal of Family Therapy, vol. 43, no. 4, Jul/Sep2015, pp.314-325

Habashi, Janette, et al. “Patterns of Human Development Indicators across Constitutional Analysis of Children’s Rights to Protection, Provision, and Participation.” Social Indicators Research, vol. 105, no. 1, Jan. 2012, pp. 63-73

Hammersley, Martyn. “Research Ethics and the Concept of Children’s Rights.” Children & Society, vol. 29, no. 6, Nov. 2015, pp. 569-582.

James, Sandra. Daniel J. Hynan: “Child Custody Evaluation: New Theoretical Applications and Research.” Journal of Child & Family Studies, vol. 24, no. 2, Feb. 2015, pp. 546-549.

Kruk, Edward. “Arguments for an Equal Parental Responsibility Presumption in Contested Child Custody.” American Journal of Family Therapy, vol. 40, no. 1, Jan/Feb2012, pp. 33-55.

Okado, Yuko and Mary Haskett. “Three-Year Trajectories of Parenting Behaviors among Physically Abusive Parents and Their Link to Child Adjustment.” Child & Youth Care Forum, vol. 44, no. 5, Oct. 2015, pp. 613-633

Patel, Samir H. and Laura Hensley Choate. “Conducting Child Custody Evaluations: Best Practices for Mental Health Counselors Who Are Court-Appointed as Child Custody Evaluators.” Journal of Mental Health Counseling, vol. 36, no. 1, Jan. 2014, pp.18-30

Prescott, Dana E. “Social Workers as “Experts” in the Family Court System: Is Evidence-Based Practice a Missing Link or Host-Created Knowledge?.” Journal of Evidence-Based Social Work, vol. 10, no. 5, Oct. 2013, pp. 466-481. E

UCUS, Sukran. “Exploring Children’s Perceptions and Metaphors on Children’s Rights.” Journal of Kirsehir Education Faculty, vol. 17, no. 3 Dec. 2016, pp.811-833

www.cdc.gov/nchs/fastats/marriage-divorce.htm

www.highconflictinstitute.com/articles/articles-for-professionals/78-hci-articles/published-articles/116-is-family-court-broken

www.leadershipcouncil.org/1/res/cust_myths.html

www.ncd.gov/publications/2012/Sep272012/Ch7