What is the role of children in a divorce case? Should they come to court? Should they participate in mediation?
When I began practicing law in 1987, it was not unusual for parents to bring their children to court to testify, without any support or preparation. Due to the harm that the children experienced, the West Virginia Supreme Court adopted a rule that limited children’s involvement in court proceedings.
Is mediation different? Should children be included when the question of child custody is raised? While it may sometimes be beneficial to include some children in the mediation process, inclusion may raise concerns about the safety and wellbeing of the child and about the confidentiality of the proceeding.
The Minnesota Alternative Dispute Resolution Collaborative Project developed guidelines for what they refer to as Child Inclusive Mediation. In this model, the process includes both a mediator and a professional to support the child. The guidelines focus on several requirements:
- All participants agree to child inclusive mediation.
- The child desires to participate and be heard.
- The child is mature enough to understand that he or she does not make the decision.
- The child is willing to help the parents in making a decision.
Child Inclusive Mediation includes a referral to the process, screening to determine suitability, and preparatory meetings with the mediator, the child specialist and the child and parents. The mediation session with the child present then occurs. At the next mediation session, the parents continue work on their agreement, considering the information provided by the child.
Although developed for children’s involvement in legal proceedings in another context, the model in Family Group Decision Making (FGDM) provides guidance on how to structure a mediation that includes children. In FGDM meetings, the entire family meets with professionals to craft a plan to improve the family’s situation. In FGDM the decision to include the children and the role that the children may play depend on the age and maturity of the children. In most situations, the child will also have an advocate and counselor to assist them in the meeting. The FGDM process involves specific steps, including the referral and the decision to include the children, preparatory meetings, the family meeting, (that usually includes private time for the family) and follow up sessions to review the plan and the outcomes.
These two models raise a number of good questions that should be addressed before a child is involved in any mediation process.
- How old is the child? Is the child sufficiently mature to understand that he or she will not be the decision maker in any matter and that he or she is participating to help the adults in reaching a decision?
- Has the child been abused or neglected by either parent? Will the child feel safe participating in the mediation?
- How is the child’s emotional well being? Does the child have support from a mental health professional? Does that professional believe that the child would benefit from participating in mediation? What procedures does the counselor recommend?
- Does the child have an independent advocate or support person? Do the parents agree to the appointment of a guardian ad litem or a mental health professional to support the child in the process?
- How many children are involved? Will they all participate? How can the exclusion of one child be addressed?
- What will be the structure of the mediation? Will you be in caucus or will everyone be in the room together? What structure does the child request?
- Additional questions that may be helpful in preparation can be found in the American Humane’s Family Group Decision Making Guidelines.
Whether or not a child should participate in the judicial process or in mediation will depend on the answers to these and other questions. If the parties and the mediator agree that a child should be involved, they should carefully approach the preparation, the mediation and any follow up sessions to be sure that the child’s well being is furthered by the process.