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Research note
Children’s rights and children’s voices in contested custody and visitation cases in Sweden and the US Diane Pranzo
Abstract
These research notes look at the differing ways in which the basis for including a criterion regarding children’s opinions in disputed custody and visitation processes, in the US as compared with Sweden, impacts on the role and place that children’s opinions and wishes will have on the process. Sweden’s rationale for including children’s contributions to decisions made regarding them has as its underlying basis the idea of a right that arises from a moral obligation toward children, as represented in the United Nations Convention on the Rights of the Child. In the US, the inclusion of the criterion that allows for the weighting of children’s opinions regarding decisions made about them arises from a legal basis that sorts actions into what is acceptable and unacceptable adult behavior toward children. The notes were generated from a larger study comparing Swedish and US custody and visitation disputes.
Keywords
Children, children’s rights, children’s voices, custody disputes, custody evaluations, United Nations Convention on the Rights of the Child
The following research notes are based on a larger study comparing trial court documents of contested child custody and visitation disputes, between two parents, in the US and Sweden. Fifty-three case documents come from trial courts in Sweden and 67 cases from trial courts in Florida and Connecticut (Pranzo, 2013). An additional 238 US appeals court cases from other US jurisdictions form the background to the study. In both countries consideration of the preferences and opinions children have regarding a decision of which they are the subject, is included in the criteria that governs best interest decisions (Connecticut General Statutes, 2011; Florida Title VI, Chapter Corresponding author: Diane Pranzo Email:
[email protected]
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61; Föräldrabalken; Elrod and Spector, 2010). The ways in which children’s opinions are gathered and received, however, differ because the underlying reason for including a voice for children is different in the two countries. In order to understand why this is the case we need to briefly consider the idea of rights in the US in contrast to the idea of rights in Sweden. The rhetoric of rights may seem to be similar in the two countries, but a closer look shows that rights are sourced from a different basis in the two countries. In Sweden, the discussion of children’s rights has focused on the idea of rights contained in the United Nations Convention on the Rights of the Child (UNCRC) in an extension of the idea that there exists a universal set of human rights.1 In this context rights are viewed as arising from the moral underpinning of the universal expectation that all persons are entitled to certain considerations and treatment. The Swedish understanding of rights for children has to do with the immorality of withholding or acting upon a person in particular ways that can or should be recognized as universally moral or universally immoral. In contrast, in the US, the term right is inextricably linked to the concept of rights arising from the United States Constitution. Rights in the US context refer to legal guarantees between individuals and the state which one shares with other individuals who are citizens. Understanding this difference between the two concepts of rights it is possible to see that following the ideas of Honneth (1992) law can either be status confirming or a matter of action sorting. Some laws, that is, are used to confirm an individual’s place in society, whereas some laws sort actions into categories of acceptable or unacceptable behavior. Stemming from the understanding of the universal moral basis of rights, the law in Sweden, concerning the inclusion of the opinions of children, in situations where a decision is being made about them, can be viewed as status conferring (Honneth, 1992: 92– 139). The right to be heard is used to confirm the status of a person who is entitled to expect certain considerations. One of these considerations is the right to contribute to, or voice an opinion regarding, decisions that will impact on one’s life. Other laws pertaining to children in Sweden can also be seen to follow from the moral underlying basis of human rights. Swedish laws regarding the treatment of children confirm children’s right to stability, love, freedom from fear, emotional harm, physical punishment, and other forms of abuse (including neglect and medical neglect). Laws pertaining to children in the US, including the inclusion of the opinion of the child criterion, are a matter of action sorting. US child protection laws, to give an example, sort adult actions into what is acceptable and unacceptable behavior towards children. Child protection laws vary from US state to US state; for instance, the amount of physical punishment which is considered acceptable varies.2 In Sweden the law against physical punishment of children is not solely to protect children against overly harsh punishment, but is also regarded as a matter of a child’s right not to have to endure physical punishment for any reason (it is a human right not to be violated by physical pain inflicted by another person, whatever the proposed purpose of the punishment). The two different starting points for including children’s opinions in disputed custody and visitation cases impact upon the reception of children’s opinions in the court process in key ways which in turn are influenced by the age of the children who are the subject of a dispute. The Swedish focus necessitates that opportunities be created even for young
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children to give their opinions regarding the process, the current situation, and what they might like the future to be like (Barnombudsmannen, 2005: 6).3 The US focus provides for investigating the preferences of mature children, however, in the case of young children there is less, and often no compulsion, to create opportunities for children to have a voice. In such cases, the judge will remark simply that the child is too young to express a preference. In fact, US judges in the sample cases were wary of attempts to elicit opinions from young children regarding a custody or visitation situation. Young children are viewed as needing protection from the adult world and should not be made to take on the adult burden of decision making (a similar concept exists in the UK, see for example, James et al., 2004). 4 Similarly, if young children’s opinions are spontaneously voiced these should be viewed critically as a young child might be confused about the situation or his/her own desires. A US judge from the sample cautions against placing too much emphasis on the utterances of a young child. Quoting from Gennarini v. Gennarini he says, “A child caught up in the maelstrom of family strife may produce, to the psychologically untrained eye and ear, distorted and thus misleading images not only of the child’s parents but of the child’s own feelings; and those feelings themselves may be transient.” The elicited opinions of young children may have a place, in the view of the US judges, in a therapeutic setting, but not in the decision-making process. Nevertheless, if young children do voice an opinion which is in agreement with a judge’s decision, judges sometimes mentioned it. Additionally, the age at which a child is viewed as mature enough to express an opinion which will influence the court varies between states. For instance, a few states maintain statutes that call for disregarding the age of the child and instead specify the reasonableness of a child’s opinion.5 In Sweden, custody evaluators will often try to elicit the feelings of very young children regarding the situation without directly asking children who they want to live with. Instead, Swedish custody report writers try to create situations in which children feel comfortable to express any opinions they might have regarding the situation or decision. One custody evaluator reports on this process as follows, “After a while we begin to draw their family map on a big paper on the wall. We draw the children in the center and mamma and pappa on top then we draw in their grandparents.” After this family drawing technique is used the evaluator initiates a discussion about the current situation, trying to be available for the children to express an opinion. For example the evaluator reports, “They have a little difficulty talking about their parents’ separation, and we wonder how they would have things if they could decide. They are a little unsure and don’t answer.” The Swedish evaluator also interprets the children’s non-verbal body language. For instance the evaluator reports, “When we ask if they are happy with how things are now it shows in their body language that they are not happy. They cling to each other and are sad.” In contrast, in the US, parents involved in a custody dispute may be encouraged to provide therapy for the child, and therapy would be the situation in which the child would have the opportunity to voice an opinion regarding the situation. Testimony from a professional involved in providing therapeutic treatment for a child, however, is not viewed as an objective source of information for influencing the judge’s decision making (especially if the therapist is hired by one parent and not the other).
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Childhood 0(0) Despite the attention given to allowing young children a voice in the Swedish process, in both the US and Swedish cases, older children are more likely than younger children to have their wishes followed in a decision. Even here, however, the different starting points for including children’s opinions impact the way in which older children’s opinions influence the process. For example, older children’s opinions may be used as evidence in US cases rather than as a way of understanding children’s ideas regarding how they want the situation being decided on to work out. In the US the question can be asked in any given case, is a child’s opinion being regarded or is it being used as evidence? Children’s opinions can be used as evidence not just by the judge but by professionals or experts who are charged with making recommendations in a case. A child’s opinion becomes evidence once it is viewed as needing analysis to discover something about the child giving the opinion, rather than the opinion being used as a way of finding out what a child thinks about the current situation or what she or he hopes will happen after the decision is made. It is an important distinction to clarify which role a child’s opinion and voice is occupying in any given case. Is a child’s opportunity to voice an opinion fulfilling an obligation to a child to have his/her voice heard? Or is the child’s opinion being used as a piece of evidence to be analyzed? Whenever a process moves from the idea of finding out what children think about the situation being decided as a matter of their right to voice an opinion, to that of one criterion among other custody criteria, there is the danger of moving toward an analysis of children’s opinions rather than the regarding of children’s opinions. Additionally, when children’s opinions are regarded as one among a range of competing criteria of equal value, decisions made in accordance with the wishes of older children may arise more from a fear that children in this age group may take some negative action rather than live with a situation they are opposed to. In US cases, the opinion of an older child can become a balance between the fear of a child running away, if forced into a situation against their will, and the idea that older children need to be controlled and should do as the court specifies regardless of what the child desires. In one of the US cases, the judge referenced the evaluator’s opinion that the oldest child would ‘vote with his feet’ if he was made to live with his father against his will.7 In contrast, in the case Cintron v. Long, the judge asked, “Why is a twelve year old controlling the issue of visitation?” And in Case US67, the judge criticized the mother for not teaching her daughter to comply with court orders despite the mother’s insistence that the only way she could force her daughter to the court-ordered psychological exam was to use physical force. US cases can spiral into a Kafkaesque version of best interest as a case becomes a battle of wits and will between children, judges, and custody evaluators, or other experts — particularly in situations where older children refuse to go on scheduled visits or refuse to act respectfully when they are compelled to go on visits against their will. Here, children’s wishes come up against the rights of parents to have visits with their children. In just such a situation children’s opinions can become ripe for analysis rather than the consideration implied by having a right to a voice. When this happens, children are caught in a catch-22 situation in which their opinions are used as evidence of the fact that something is wrong with their thought processes, and this in turn means their opinions should not be followed. The most spectacular case of this painful logic is found in Cintron v. Long cited above. According to the appeals court judge in the Cintron case the child was a well-adjusted “A” student before the court
Pranzo 5 process that led to her being removed from residence with her mother. Before the appeals court had the chance to overturn the trial court’s decision, however, the child’s stable past had been upended and the child had spent time in both a psychiatric hospital and a boarding school. This state of affairs arises from a situation in which psychology and psychological definitions of the dynamics of contested cases, in the US, have taken over from the legal focus (see for example, Fineman, 1988). In the case of older children, for instance, an Attorney for the Minor Child (AMC) or a Guardian ad Litem (GAL) when the GAL is an attorney, may view their remit as one of a legal professional/client relationship in which a lawyer represents a client’s interests but also takes into account their client’s wishes. Representatives for children in contested processes, however, are increasingly coming from a forensic psychology background (Ducote, 2002; JohnsonWeider, 2003; McCurley et al., 2005). In this case, the representative for the child may take the view that part of their remit is to represent the child by also interpreting a child’s words and actions. In the Swedish cases studied, the opinions of older children (but not younger children) were the key to determining the outcome of a dispute. In one case, a teenager refused to have any visitation with an estranged parent (Cintron also involved an estranged parent). In another case, both children’s wish t o not have a set schedule of visitation with their mother was respected. And in yet another case, the custody evaluators worked to support the wishes of an older child who wanted to change his residential parent.8 Meanwhile, evidence from the US points to the continuing disregard for the preferences and opinions of older children. A recent case, for example, involved the arrest and brief incarceration of a teenager who did not want to attend his scheduled visits with his father (Cook, 2009), and writing about children in New York courts, Erickson (2007) depicts cases of older children having no impact on decisions made about them even when being represented by an AMC. Despite the wish of older children to decide when and under what circumstances they want to meet and visit with a non-resident parent, perpetual court processes can result in years of enforced attempts at reunification therapy, and monetary expense for both parents, often with little resolution until the children are too old to be subject to a court process (see for example, Z.H. v. R.H. 2011). The impact of young children’s opinions on decision making has more similarities between the two countries in that young children’s opinions are often set aside fairly superficially when a young child’s preference does not agree with what the judge or experts and professionals determine is in the child’s best interest. In Sweden, more effort goes into making sure that young children have the ability to state what they think about the situation and perhaps how they would like the situation to work out — however, this opportunity does not mean that young children’s preferences are more likely to be followed. In the US, the record may simply state that the child in the case is too young to have a preference, in which case whether or not the child expressed an opinion is not noted any further. At other times, a US court will mention that a young child expressed an opinion, but note that the child is too young to have his or her preference impact on the decision. In both countries, young children’s opinions will not be given as the sole reason for deciding a case in a particular way; however, referencing a young child’s preference seems to be used to add strength to what a judge has already decided. For example, in one case the judge noted that the child said he wanted to “go home”. In another case, however, the judge downplayed the desire of the children to go home opining instead that, although when the children first started living
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with their father (a year previously) it was clear they dearly missed their mother, they should currently be considered settled at their father’s house.9 A point to consider, regarding the US, which impacts on the inclusion of both young children’s and older children’s opinions is the difficulty in having a pre-existing order modified. Before a case is reheard according to the best interest standard the party bringing a previously decided case to court must show there has been a change of circumstances from the time the original order was made. In some US states even an older child’s mature and articulately expressed preference to change residence or scheduled visitation is not sufficient for the court to determine there has been a change of circumstance. In other states the desire of an older child to have an order modified can be viewed as a sufficient change in circumstance.10 The above research notes have put forward the proposition that the idea of a voice for children in Sweden in best interest cases is a matter of confirming the status of children as people with human rights. When decisions are made about children in Sweden there is an imperative to set up a situation in which children can voice an opinion regarding the situation, whatever the child’s age. In the US, laws regarding children, including the provision for children’s preferences in best interest cases, are a matter of action sorting. In the US, whether the opinions of very young children had any impact on a case was more variable and mostly dependent on the attitude of individual judges who hold differing views regarding the consequences of trying to have children express an opinion or preference. The opinions and preferences of older children in both countries have more impact on outcomes. In the US, however, the issue of control over a mature child sometimes takes precedence over respecting a child’s preference. Since children are not thought of as having a right to a voice out of respect for children as people to whom this specific right is attached, and due to the focus of psychological professionals and experts in custody trials, children’s opinions may be analyzed, rather than respected, in the US process. Funding This research received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.
Notes 1.
2.
3.
4. 5.
Swedish law has incorporated the provisions found in the UNCRC (Swedish Government 1997/98, 182). Although the US has signed the Convention it has not yet ratified it. For a discussions regarding why there is opposition against the Convention in the US, see for example Farris (2007). All 50 states, with the possible exception of Minnesota, allow corporal punishment of children by their parents. Corporal punishment is still an allowable method of school discipline in 19 US states (Gershoff, 2008: 20). In both countries the preferences and opinions of children are included in criteria that governs best interest decisions. See for example (Elrod and Spector, 2010) and Föräldrabalken especially: 6 kapital: 2a § 2b §3§. In Case US1, the judge noted that he refused to try and ascertain a preference regarding residence on the part of the children due to their ages (8 and 6). A few states refer to the reasonableness of the child’s opinion; for example, Neb. Rev. Stat. which allows, “The desires and wishes of the minor child, if of an age of
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comprehension regardless of chronological age, when such desires and wishes are based on sound reasoning.” The social report writer’s statements in the custody evaluation, Case SW22. Case US31. Cases SW39,SW41, SW46. Cases US14, US41. For example see Oklahoma, Eimen v. Eimen.
References Barnombudsmannen (2005) Barnets bästa; barnombudsmannens synpunkter på fågor om vårdnad, boende och umgänge. In: Barnombudsmannen Rapporterar. (br 2005:06). Swedish Children’s Ombudsman. Cook, J. (2009) Teenager incarcerated for refusing to visit his father. Macomb Daily, 21 November. Available at: www.macombdaily.com/articles/2009/11/21/ (accessed 7 March 2012). Ducote, R. (2002) Guardians ad litem in private custody: The case for abolition. Loyola Journal of Public Interest Law Spring. Elrod, L.D. and Spector, R.G. (2010) Custody criteria: Chart 2. Family Law Quarterly 43(4): 972– 973. Erickson, N.S. (2007) Confusion on the role of law guardians: The Matrimonial Commission’s Report and the need for change. New York Family Law Monthly 8(6). Farris, M. (2007) Advocates prepare for the Children’s Rights Treaty. Parental Rights Organization Newsletter. Fineman. M.L. (1988) Dominant discourse, professional language, and legal change in child custody decision making. Harvard Law Review 101(4): 727–774. Gershoff, E.T. (2008) Report on physical punishment in the United States: What research tells us about its effects on children. Center for Effective Discipline 20, Columbus, OH. Honneth, A. (1992) The Struggle for Recognition: The Moral Grammar of Social Conflicts. Cambridge: Polity Press. James, A.L., James, A. and McNamee, S. (2004) Turn down the volume? Not hearing children in family proceedings. Child and Family Law Quarterly 16 (June): 189–202. Johnson-Weider, M. (2003) Guardian ad litem: A solution without strength in helping protect dependent children. Florida Bar Journal 77(4). McCurley, M.J, Murphy, K.J and Gould, J.W. (2005) Protecting children from incompetent forensic evaluations and expert testimony. Forensic Evaluations 19: 277. Pranzo, D. (2012) Child Custody and Visitation Disputes in Sweden and the US: A Comparison of Love, Justice, Knowledge. Maryland: Lexington Books (2013).
Cases Cintron v. Long, 2000 WL 943745 (5 July 2000,Va. App.) (unreported). Eimen v. Eimen, 2006 Ok Civ App 23, 131 P.3d 148. Gennarini v. Gennarini, 2 Conn. App. 132, 137, 477 A.2d 674 (1984). Z.H. v. R.H. 2011, Lexis 3124 (29 December 2011, Superior Court N.J. Appellate Division) (unpublished).
Legal documents Connecticut General Statutes (2011) Title 46b Chapter 815J § 46b-56(c). Florida Title VI, Chapter 61§ 61.13(3). Föräldrabalken (SFS1949:381) with amendments up to and including (SFS 199798:7) especially: 6 kapital: 2a § 2b §3§.
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Föräldrabalken 6 kapital §11. Neb. Rev. Stat. S 42-364(2) (Reissue 1998). Regeringens proposition 1997/98:182 Strategi för att förverkliga FN:s konventionbarnets rättigheter i Sverige. UN Convention on the Rights of the Child (1989) UN General Assembly Document A/ RES/44/25
