Don't Forget The Children: Court Protection from Parental Conflict is in the Best Interests of Children

• Date: 01 October 2014
• DOI: http://doi.org/10.1111/fcre.12116
• Author: Milfred D. Dale
• Published date: 01 October 2014

DON’T FORGET THE CHILDREN:

COURT PROTECTION FROM PARENTAL CONFLICT IS IN

THE BEST INTERESTS OF CHILDREN

Milfred D. Dale

This commentary notes that the White Paper of the Honoring Families Initiative failed to address how including the child’s

voice in best interests of the child determinations f‌its or does not f‌it into their proposal. To the extent appropriate and possible,

the child’s preferences and voice should be heard. In addition, the White Paper’s emphasis on avoiding the adversarial nature

of litigation distracts it from a necessary emphasis that conf‌lict is the enemy of children and that conf‌lict can emanate from one

or more of numerous sources, some connected to the court processes and some independent of court. This commentary ends

by noting that courts are needed for enforcement of orders and protection, yet they also have much more to do despite the

inconvenient truth of dwindling resources.As the f‌igurative and literal head of each community’s interdisciplinary team, courts

must continue to serve as conf‌lict managers protecting children in high-conf‌lict families.

Key Points for the Family Court Community:

• To the extent appropriate and possible, the child’s preferences and voiceshould be included in best interests deter mi-

nations.

• Effective system reform must reduce conf‌lict or protect children from the harmful effects of conf‌lict.

• Courts must play an indispensable role in coordinating and facilitating efforts to help children and families in conf‌lict.

Keywords: Child’sVoice;Children in Mediation;Court as Conf‌lict Manager;CourtLeadership;Custody;Harmful Effects of

Conf‌lict;Inconvenient Truth;and Interdisciplinary Partnerships.

INTRODUCTION

[E]xperience has shown that the question of custody, so vital to a child’s happiness and well-being,

frequently cannot be left to the discretion of parents. This is particularly true where . .. estrangement of

husband and wife beclouds parental judgment with emotion and prejudice.1

This article is an invited commentary on the White Paper of the Institute for the Advancement of the

American Legal System’s Honoring Families Initiative (HFI) on the court and separating and divorc-

ing families.2The stated goal of the White Paper is “to facilitate a national dialogue on how courts and

communities can better meet the needs of parents and children that arise from the transitions of

separation and divorce.”3The HFI seeks “to advance empirically informed models for dignif‌ied and

fair processes for the resolution of divorce and child custody cases in a manner that is more accessible

and more responsive to children, parents, and families.”4I support this initiative,so long as we “don’t

forget the children,”5wef‌ind a way to hear the child’s “voice,” and we recognize that court protection

from the harmful effects of parental conf‌lict is in the best interests of children.

This commentary focuses on three areas not adequately addressed in the White Paper. First,

planning for the future of children and families should, to the maximum extent appropriate and

possible, include the child’s voice. Second,given the robust and consistent research demonstrating the

causal role of conf‌lict in the litany of harms and risks to children, any effective system reform must

reduce conf‌lict and/or protect children from the harmful effects of conf‌lict. And f‌inally, even during

times of economic crisis, courts must play an indispensable leadership role as conf‌lict manager and

facilitator of the interdisciplinary partnerships that help and protect children in high-conf‌lict families.

Correspondence: drbuddale@aol.com

FAMILY COURT REVIEW,Vol. 52 No. 4, October 2014 648–654

© 2014 Association of Familyand Conciliation Cour ts