SET ANOTHER PLACE AT THE TABLE: Judge David Haracz Lisa Nelson Stacey Platt CHILD VOICE IN FAMILY LAW CASES October 2019
CHILD ADVOCATE’S VANTAGE POINT
DAY-TO-DAY REALITY: Use and Fear of Child Voice Child Power through Voice
U.N. CONVENTION ON CHILD VOICE Article 12 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
STATE LAW CHILD VOICE REQUIREMENTS Kansas, Illinois, Colorado: Best Interest Factors NY: Case Law: Eschbach v. Eschbach (1982)
ILLINOIS ALLOCATION FACTORS
PROCEDURES INCORPORATING CHILD VOICE
ILLINOIS IN CAMERA The court may interview the child in chambers to ascertain the child’s wishes as to the allocation of parental responsibilities. Counsel shall be present at the interview unless otherwise agreed upon by the parties. The entire interview shall be recorded by a court reporter. The transcript of the interview shall be filed under seal and released only upon order of the court.
RISKS OF CHILD PARTICIPATION Due Process & Evidentiary Thorns Empowerment, Responsibility, Guilt Right of Non-Participation Reliability Concerns
BENEFITS OF CHILD PARTICIPATION
IN CAMERA TIPS FROM THE COURT I Court Reporter – YES! Waiver: waive presence . . . attorneys, pro se litigants Child Reps in the interview. . . not Sheriff’s deputies Mechanics of getting the child into (and out of) chambers Each case, child, situation is different, even between siblings. (Interview individually usually.) Nervous, Angry, Clueless, Emotional Wanting a role. . . or not
IN CAMERA TIPS FROM THE COURT II Prepare questions for judge. Interview should be informal, explain presence of the court reporter. Oath / “Truth Telling” – don’t need Attempt to relax the minor child. Try to be chronological. . . if not dates, use school or seasonal markers. Funnel -- General to specific. . . Eventually get to the issue at hand.
IN CAMERA TIPS FROM THE COURT III Use open ended questions. Avoid ultimate question. No script! Follow up, don’t assume, be flexible. Pick-up on non-verbal cues. Questions? Prepared statement? They may have worked with the Child Rep or their therapist for the interview. Did anyone talk to them about seeing the judge? Did anyone tell them what to say to the judge? If they want to talk to the judge again, they should let their lawyer know.
IN CAMERA TIPS FROM CHILDREN (AND THEIR FRIENDS) Talk less; Listen more; Open up the Floor. Don’t make me feel responsible. Tell me the truth about confidentiality, before I talk to you. Just because I’m prepared doesn’t mean I’m lying. Just because my feelings are strong, doesn’t mean I’m being manipulated. Respect my desire to be heard and truly consider my wishes. Respect my desire to be quiet. Tell me what’s going to happen next, and when.
MOVING CHILD VOICE FORWARD
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