Trending: A New Take on “Best Interest of the Child”

Just a few days ago, social media was trending with its usual celebrity gossip and sports news, but an interesting family law case in Michigan snuck into the mix. A judge in Michigan sent three children to juvenile detention for refusing to have lunch with their father (if you haven’t had a chance to read the story, click here). As a collaborative lawyer who tries to help clients avoid hostile court battles, this story especially peaked my interest. After seeing much commentary and debate on the situation, I gave some thought to my own take on the story.

kid-1-1238721The “best interest of the child” standard that many people speak of is nothing if not general. The fact is family law is incredibly unique in that no matter how many guidelines and factors exist, each situation presents its own individual circumstances. With that in mind, it is sometimes hard to give opinions on cases when the facts are not known. In this case, there seems to be a lot of gray area, but what is known is that Judge Gorcyca ordered three children, ages 9, 10 and 15, to attempt to have a relationship with their father. The children’s parents are currently in a custody battle while going through the divorce process.  According to the reports on the case, the oldest child, 15, told the Judge that he had previously observed the father being abusive toward the mother, and thus would not attempt to speak with or have a relationship with the father. After the Judge insisted and the child refused, the Judge ordered that child was in contempt of court for being in direct violation of judge’s orders. She then ordered the child be sent to Children’s Village, a juvenile detention center, until the child would attempt a relationship or speak with his father.

mother-and-daugther-1623927After speaking with the other two siblings, although one spoke to the father, the Judge sent them to juvenile detention as well when they both refused to go to lunch with their father. While not entirely clear from the court transcript, it seems that Judge Gorcyca felt that the children’s mother was pitting the children against the father, and that was the reason they did not want to see him. Additionally, the children’s father also gave an interview to explain that he, too, feels that because of the long custody battle,  his children are being poisoned against him (you can read his interview here).

While there are two sides to every story and many details that the public will not know, the main issue of concern is (and should remain) the children. Regardless of the underlying reasons, three children were sent to juvenile sad-boy-1564119detention facilities away from any familial contact because they did not want to speak with their father.  In this case, there are three young children who feel adamantly about not having contact with a parent. Rather than sending those children away, I think it is important to understand the “why” behind their decision. As unfortunate as it may be, custody battles can sometimes get very hostile and very drawn-out. While most parents may try to shield their children from the details of what is happening, it doesn’t always work that way. In this case, the children (and adults) may be better served by talking to appropriate, qualified professionals about the situation. According to court documents, the 15 year-old child states to the Judge that he personally observed his father striking his mother, which was his reason for not wanting contact with his father. To live up to any “best interest of the child” standard, we, as legal practitioners should look at that and immediately want this child to be able to speak freely so that we can better understand the dynamics of the situation.

This case exemplifies in many ways the importance of and value of collaborative law. Rather than one side against the other looking to win, collaborative law works to optimize the result for both parties. Additionally, this is a prime example of why the collaborative team is useful. In this case, the father has a strong feeling that the mother is pitting the children against him. Rather than fighting in court, the collaborative team could work with each party to better understand the situation and how to move forward in a healthy way.

family-time-3-1312784While it is hard for me, as a practitioner, to pass judgment on the actions of a Judge in a complicated case such as this, it seems to me that sending children to juvenile detention will not fix the problems. When a child feels a certain way, punishment does not address what lies beneath that feeling. When we worry about the best interest of the child, we must take into account not only the interests we think are important, but the children’s thoughts and feelings as well.  That does not mean that the child needs to or should attend the meetings between the parents.  In collaborative practice, the clients can add a child specialist to the collaborative team. The child specialist is a mental health professional (typically a psychologist or LCSW) who has focused his or her work on child-related issues. In my experience, using a neutral professional for this purpose can help work through an impasse in the negotiations.  The child specialist can meet with the child to get a better understanding of the child’s needs and feelings.  That information is then shared with the parents to help in their decision-making about parenting arrangements and child related issues.  Even if a child specialist is not used, experienced divorce attorneys can assist in structuring negotiations outside of the court system that promote a healthy parenting arrangement.  Cooperative parenting benefits children, whether parents agree on every issue or not and whether parents live together or apart.

For more on parenting agreements, click here.