Children`s Rights to Express Opinion in Court Decisions

Your Children May Dictate the Terms of Your Divorce

On November 20th, 2011, the Israeli Parliament approved a new bill/rule ("takana") regarding the participation of children in Family Court Procedures. The bill 258 is from the Civil Rule Proceedings ("Takanot Seder HaDin HaEzrachi").

These new rules will work as a “pilot” project in two different courts and at the end of three years it will be enforced in all of the Family Courts.

The new rule stipulates that in any proceeding where children over six years of age (even younger if the Judge deems it proper) are involved in a case concerning them (naturally most cases do concern them, such as custody, etc.) "The child will be given an opportunity to express his feelings, thoughts, and wishes regarding the case being heard. A fair weight will be given in the court decision according to the child`s age and maturity. The Honorable Judge presiding over the case will have the power NOT to hear the child if he is convinced that the use of the child`s right will eventually hurt him more than the denial of his right to voice his opinion. The Judge will have to explain in writing why he decided not to hear the opinion of the child. (Please note that this is a free translation of the law and not an exact one.)

In spite of the fact that the child, according to the law, is supposed to be heard at the beginning of the procedures, the Judge will have full discretion to hear the opinion of the child at any time during the procedures.

The child will be given a full legal explanation regarding his rights, the goal of the hearings, his right to handle his deposition in writing and not orally, and even his right to waive his right to be heard. The child will not necessarily be heard by the Judge. As I predict most of the children will be heard by social workers from the Family Court Special Agency called "Yechidat HaSiuah". In this case, the social worker can present the Judge with his/her impressions from the child`s testimony.

When a couple reaches a divorce agreement the Judge will ensure that the children involved were heard, meaning even if a couple reaches a civil and peaceful divorce agreement, the Judge may decide that he wants to hear the children before he authorizes the agreement.

The problematic aspects of the law:

The power of the social workers in this country is no secret. Now the law has granted them super-powers! They will be able to analyze from their own subjective belief system what the child has said to them. The social worker is not a psychologist nor a psychiatrist, but a social worker with a Bachelor’s Degree in Social Work. Additionally, it is well known that "power corrupts” (this is what is written on a sign at one of the elite police units). Giving more power to the already powerful social workers, who are at times very young and inexperienced, may corrupt the system even more.

As we all know, emotions are the “norm” in a divorce case so it is very possible that one of the parents may incite the child against the other parent. We need to remember that the child will be questioned without the presence of the parents and therefore the parents will never accurately know what the child said under pressure and awkwardness of the interview environment. Fear in the hearts of parents will be established which will cause unnecessary abrasion between them and even more time will be wasted until an agreement can be reached.

Presently the court has more than enough power. The Judge can ask at any given moment for a review from the welfare department (the social workers), they can appoint an attorney who will represent the “best interests” of the minor involved in the case, and even demand that the parents take and pass a parental capacity test. So the question is why involve the minor in the procedures and investigate them? There are more than enough tools the courts can use and there is no need to add these new rules in my opinion.

A Possible Scenario:

Johnny, a cute three and a half year old, still in pull-ups, and his brother Danny who is six years old, have been playing with their Legos when their parents ask them to come to hear them explain that they have decided to separate. They still love them, will take care of them and will do everything possible not to hurt them. The couple reached an agreement on joint custody, a fair sum as child support, and in fact the children will be provided with strong psychological and financial support.

Until the new law took effect, this agreement would be welcomed by the court and confirmed in minutes. Now the Judge may ask Johnny what he thinks about the agreement and Danny will surely be asked for his opinion. In the meantime many new unnecessary disagreements could be born during the waiting period until the case ends in court. Remember that the child will be heard without the presence of his parents. Imagine a Judge or social worker who may not particularly like one or both of the parents. This happens every day in the court room because we are all human - even the Judge and the social workers.

A Word of Wisdom:

In my opinion a new field may develop in Israel where psychologists and social workers will give parents guidance on how to "manipulate" the children in court in order that they will give the wanted opinion of the parent. Even worse, one of the parents can be guided and learn how to put pressure on and convince one of the children to voice the parent`s wishes according to his convenience.

Again, the parent with more financial resources will have the upper hand in the case, as is the reality today.

But the worst is the damage to parental authority. Imagine that Mom is a very strong person and a very good educator. She puts boundaries on the children, teaches them what is right and wrong and she is the one taking care of the day to day routine including the discipline of the children. As opposed to the mother, Daddy is very passive and he generally feels guilty for not being home while working long hours. Therefore he "compensates" his children by being the "nice guy". He spoils his children and seldom disciplines them.

It is clear that in a divorce case where the parents are not in agreement and the parents are fighting over custody, the children will naturally prefer the "nice guy", as happens every day in court. The older the children are, the worse the situation against the mother will be. When they reach the age of 12, it is almost certain the Judge, after "hearing" them, will give a heavy weight to the children`s wishes. Remember now the Judge is supposed to combine the best interests of the child with the child`s expressed wishes in court. But as mentioned above, the Judge is also a human being and will decide from his subjective value system what is best for the child.

This article is emphasizing only a small portion of the enormous problems this new bill will introduce to the family court rooms and the irreparable damage to already weak parental authority.
 

Sincerely,
 

Tzvi Szajnbrum, Attorney at Law