Obtaining Evidence in High Conflict Parenting Disputes, Part 1: Lawyers for Children

Family Law ColumnIn most disputes over parenting time, parents come to reasonable decisions about what is in their child’s best interests. However, a small percentage of disputes are “high conflict”. In high conflict cases, the parents have great difficulty communicating, make decisions together, and treating each other with respect. Each parent will advocate for very different schedules. High conflict cases may be driven by only one unreasonable parent or by both parents (and sometimes by very involved step-parents or extended family). Parents may be dealing with mental health issues, personality disorders, family violence, or simply high emotions that cloud their judgment. Whatever the reason, the court must decide what is ultimately in the child’s best interests. When the parents are advocating for such different proposals, the court generally requires evidence from neutral third parties and from experts.

Often, parents in high conflict cases claim the child has strong opinions about the parenting schedule. Or, they may claim that the other parents’ actions are negatively affecting the child. Usually, the other parent reports the opposite. In these cases, the court does not know whom to believe, as both parents may be self-motivated. Also, it is common for a child to tell their parents what they think they want to hear, which can result in parents being told very different things by their child. For these reasons, information from a parent about what a child thinks or says can be unreliable.

One effective method to understand what is motivating the child and what the child is truly saying and feeling is for the court to order an independent lawyer be appointed for the child. It is very rare in Alberta for a child to give evidence directly to the court as a witness in a family law matter. This can be very stressful for a child. Children usually love both their parents, despite all their faults, and it’s unfair to make them feel as if they have to choose between them. This can also open the door to manipulation, either by a parent or by a child, to get what they want. Further, depending on their age and maturity level, children are often not able to determine what is in their own best interests. Just as we don’t let children decide if they should go to school or eat their vegetables, we don’t let children decide with whom they live, unless their reasons are well-founded.

Sometimes, the court can gain insight from non-experts such as teachers, doctors, and counsellors who can provide objective information about grades, attendance, and health. However, these professionals are not experts that can give an opinion about what parenting schedule is best for a child, only what they have seen and heard themselves in the course of their interactions with the child. Also, these professionals are often reluctant to get involved in a messy divorce where they themselves may come under attack from one or both parents. They often do not want to be perceived to take sides and want to maintain their neutral role working with the child. Psychologists, in particular, must be very careful about the evidence they share with the court, especially if they have a duty to keep information they have received from their child client confidential. Also, it is a very different task to do therapy than to do an assessment of a child or their situation.

One effective method to understand what is motivating the child and what the child is truly saying and feeling is for the court to order that an independent lawyer be appointed for the child. This lawyer’s duty is to the child and to the court; it is not to the parents. In Alberta, when an order is granted, the parents can access a lawyer through Legal Aid Alberta. Unless the court says otherwise, each parent will pay for half of the resulting Legal Aid Alberta account. Parents can also retain a lawyer privately. Both parents should be involved in the decision of who will do this work and the lawyer should communicate with both parents. There should be no actual, or perceived, bias toward one parent.

Lawyers for minor children can act in various capacities. This will depend on the age and maturity of the child.

(a) The lawyer can take a “direct advocacy” role, which is the role they take with competent adults. In this case, the lawyer advocates for the child’s expressed views and interests. This is usually done with older children who can give principled reasons for their instructions.
(b) The lawyer can take on a “best interests” role, in which they hear what the child has to say but balances it against what the lawyer believes is in the child’s best interests. This is usually done with younger children or where the child’s wishes are incongruent with what would be best for their healthy development.
(c) The lawyer can take on an “amicus” role. This means that the lawyer will put forward relevant evidence about the child’s best interests to assist the court.

The court can also direct the lawyer to take a particular role. If the court does not do so, the lawyer should tell the parents and the court what role they are taking.

Lawyers for children will usually have rules about how the parents and their lawyers communicate with them. They will usually ask that the parents alternate which parent brings the child to appointments. This is to ensure there is no bias, or apparent bias, shown to either parent. The lawyer should meet with the child and develop a rapport with them. It is not uncommon for lawyers to spend time building a relationship with their child clients in order to build trust. This will help them to get the best information from and about the child. Lawyers will talk to people involved with the child including teachers, doctors, and counsellors. The lawyer might recommend that the child see a psychologist or other professional to help gain valuable information.

It is very rare in Alberta for a child to give evidence directly to the court as a witness in a family law matter. This can be very stressful for a child. Lawyers for children often make it clear to their child clients, the child’s parents, and the court, that the child is to be given a voice in the legal proceedings but not a choice. Again, children need to be relieved of the pressure of choosing between two people they love. They also should not be empowered to make decisions they are not mature enough to make for themselves. However, information about what they have experienced, witnessed, and what they feel is important for the court to understand will help the court to decide what is best for them.

During the litigation process, a lawyer for a child has the ability to bring applications and provide evidence on behalf of the child. At a Questioning or in a trial, the lawyer can cross-examine witnesses. Also at a trial, the lawyer can call witnesses who would provide evidence about what is in the best interests of the child and take positions and make submissions on behalf of the child, in accordance with the role they have adopted.

Appointing counsel for a child can be helpful in high conflict cases to sort out what is truly going on from the child’s perspective, apart from the parents’ influence. Though not appropriate in all cases, it is one option to help the court get at what is in a child’s best interests. In part 2, I’ll explore other options available to the court, particularly the assistance of trained psychologists.

The use of experts in Parenting Disputes – Part 2: Family Practice Notes 7 and 8

Authors:

Sarah Dargatz
Sarah Dargatz is a Staff Lawyer with the Family Law Office in Edmonton, AB.
 


A Publication of CPLEA