The main premise of my new book, The Equal Parent Presumption: Social Justice in the Legal Determination of Parenting After Divorce, is that despite the lip service being paid to the paramountcy of the “best interests of the child” principle in divorce proceedings, rarely (if ever) are children themselves allowed the opportunity to voice their views on the matter of their “best interests.” Despite countless books and research studies on what constitutes these “best interests,” rarely (if ever) are children asked directly about what it is they actually want in the way of parenting arrangements after divorce. Many experts claim to know what children want and desire, but this knowledge is based more on speculation and interpretation and less on the recognition that children themselves are, in a very real sense, the true experts on their own “best interests,” as they are the most affected by their parents’ divorce. These “expert” pronouncements effectively silence children and render them mute in divorce proceedings.
My simple but constant plea to divorce practitioners and policymakers, a mantra, is that we adopt a new standard in the legal determination of parenting after divorce: the “best interests of the child from the perspective of the child,” to replace the current discretionary approach based on speculation and interpretation; and a “responsibility to needs-based” orientation, to replace the dominant “rights-based” approach. A paradigm shift is needed: the well-being of children as they define it must take precedence over judicial biases and preferences, professional self-interest, gender politics, the desire of a parent to remove the other from the child’s life, and the wishes of a parent who is found to be a danger to the child.
What this implies is that first of all we adopt an evidence-based approach derived from research asking children themselves about their needs in the divorce transition, and then taking responsibility to reform our laws and public policies to address those needs. By “we” I refer mainly to those of us in the human services field working within social institutions that are meant to serve children and parents, but also to the community at large. Most simply stated, it is the responsibility of social institutions to support parents in the fulfillment of their parenting responsibilities to their children’s needs.
It has been only during the past decade that researchers have made beginning efforts to listen directly to the voices of children of divorce (and also parents) about their physical, psychological, social, emotional and spiritual needs. The picture that has emerged is dramatically different to previous studies based on “expert” interpretations.
I will not enumerate these needs, as it is the focus of my book, along with a proposal for a new “equal parenting” approach to parenting after divorce based on what children themselves have identified as their core needs. Instead I would like to provide a platform for the voice of one child of divorce, Aimee Nicholls from England. She writes about her forced estrangement from her father, but might just as easily have been referring to her mother, as judicial gender stereotypes also devalue mothers who do not conform to judges’ views of “appropriate” parental behavior. Here are selected excerpts from her message to parliamentarians, and the public, about the effects of divorce on children, and particularly the damaging effects of misguided child and family policies and practices:
“Hi there, my name is Aimee Nicholls, I’m 16 years old, and 11 years ago, my parents divorced. It doesn’t matter why right now, that’s history… It’s certainly not something that I wanted, but I also had no say... I do love my mom and dad both the same… My dad shared my care before my parents split.
Despite what people want you to think, I’ve learned that family law… works exactly how it was designed to work... It makes more money for everyone working in family law, and my situation is only partly resolved after 11 years of fighting... The system doesn’t like giving up, unless you’re one of the few families it allows to be different to “prove” that it’s fair. It clearly isn’t fair.
When I voted with my feet at age 15 to go live with my dad again, a family court judge, like all of the other ones before tried to force me to go back to my mum. And he told me I was too young to express my views to him… He said he needed social services to tell him what my views were. Think about that. I was sat in a court room at the age of almost 16, in front of him, and he effectively stuck his fingers in his ears and sang la la la. He ignored that I said that I felt at risk, probably because risk never really comes into it, unless it can be pointed at a dad to split him and his child up. More delay, more work for the system, more income, more funding. That’s what it’s all about. If you need a good reason to open up the secret family courts to the public, this is one. I bet the judge would not have dared say any of that to me if there were people watching. I was almost an adult, and I understood exactly what he was doing. His game of pretending to not be able to hear my voice was really disheartening.
It was horrible. Why would I want to go back to social services who had always misled the court about my views? They make it their job to lie, and to twist things, and this judge was just giving them another chance to do that. After 11 years of being involved, I would say it’s worse than it’s ever been at this point, right now, for kids... Ever since I started speaking out, I’ve heard from hundreds of families, and it’s always the same thing. I don’t think that’s a coincidence. For the politicians watching, the ones that want to believe all the lies; wake up. It’s worse than it’s ever been, and it’s happening on your watch. For example, the courts are still trying to ruin things for me and my dad. They stripped him of all his income, so that he can’t care for me. If they can’t force me to live with my mum, they’re just going to ruin it for me and my dad. That’s fine now, it’s fine for me, I go out and work, I’m 16. But why should we not just be left to live peacefully after all of this... Not every other kid my age is like me. They don’t speak out. More should, but they don’t. And that’s why the system can carry on…
The problem is, you can’t keep my generation quiet, and we will remember you... And those people will have to answer to us. And on that topic, I’d like to mention a few special people, who deserve to be remembered for making my life hell.
First of all, judges. I say judges (plural), not just one, because my family has been through a lot of different courts and different judges, and they all say the same thing. That’s not a coincidence. The only way that could happen is if the system is set up that way, and it’s set up wrong. I saw it myself when I made my own application at 15. The application doesn’t even cater for someone like a child… the judge just slapped me down and ignored everything I said... The judge just couldn’t care less, because it’s not what he’s used to doing, and he’s not meant to do that (i.e., he is meant to put me, the child, first).
Next, there’s teachers and school counsellors that I talked to numerous times when I was in school... Later they told social workers that I had never indicated a problem, or expressed my views. They are probably all still in their jobs abusing kids just like me.
Next, there’s the (family court) expert witness that made my dad sound like he was some kind of psychopath. Clearly he isn’t, but that doesn’t matter. This guy took a huge fee and wrote some rubbish to ensure that my sister and I would be kept from seeing my dad. And he’s still out there as well, destroying families, taking his large fees. I hope he’s enjoying the money that he got from destroying my life, and my sister’s life. She’s seven...
And, lastly, a very special mention for the (child welfare officer) who did everything in her power to keep me from my dad. From lying in the reports, to “losing” my wishes and feelings report… Also, repeated interviews which were not meant to happen. With increasing pressure until I told her that I wanted to live with my mum. I guess she’s still out there as well, destroying other children’s lives.
The system is completely broken. Almost everyone working in the system has some vested interest in what’s going on, and they’re making it worse. If it’s not money and work, it’s politics... The whole secrecy thing, it just makes it a 100 times worse. I personally think that would be one of the main things that would resolve this. Family law, and the courts, and social services and (child welfare officers) all just have too much money, and they use it to put pressure on the government to continue doing what they do. Nobody else’s voice gets heard. Politicians just need to stop this, and not in a few months, or two years, or a few weeks even. They need to do it now…
I want us all to be together, why can’t that happen? There’s no reason for that not to happen. You should explain it to me and my sister in a way that makes sense to us, because all we know is that we love each other, and we love our dad, and some pensioner in buckle shoes and a wig keeps telling us that it’s not in our best interest. I think family law is not in my best interest. And I think it’s time for it to go.
I’m Aimee Nicholls. Thank you for listening. Now go out and do something about it.”
Kruk, E. (2013). The Equal Parent Presumption: Social Justice in the Legal Determination of Parenting After Divorce. Montreal/Kingston: McGill-Queen’s University Press.