The Lawyers Weekly - November 12, 2010

Involving children
in family law cases

An oddity in Family Law

Parents lose custody of Adolf Hitler

Parents who chose Nazi-themed names for their kids — including calling their son Adolf Hitler—have lost custody of their three children.

Heath and Deborah Campbell, of Phillipsburg, New Jersey, named one daughter after Himmler, a Nazi politician. Another daughter is named JoyceLynn Aryan Nation, after the white nationalist neo-Nazi organization. An appeals court found evidence of abuse in the home, according to the Toronto Sun.

The children were put into foster care after their parents tried to get a birthday cake with their son’s name on it at a local store. —Natalie Fraser

I have this recurring dream. It is a scene out of Silverado, I think. Kevin Kline has had his horse stolen. He finds it, along with the thief — only the rustler says it’s his horse. So the sheriff places each man about 30 feet apart, with the horse in the middle, to see which one the horse will go to.

This is where the picture slowly begins to change. As they alternately beg and plead, cajole and command, the cowboys turn into separated parents, and the horse becomes their five year-old daughter.

Silly, I know. Yet most family law lawyers have experienced something like this. We tell clients not to do it. Judges call it child abuse. At the same time, there is a growing call to involve children in the process. How do we do that and not place them in the middle?

Justice Donna Martinson has put the child’s right to be heard in possibly the strongest terms yet, in B.J.G. v. D.L.G., [2010] Y.J. No. 119. This right, she says, is based on the United Nations Convention on the Rights of the Child. Canada ratified the Convention in 1991, and domestic law must be presumed to respect the values and principles reflected in it. The core principle is that “children who are

DAVID
DUNDEE

capable of forming their own
views have the legal right to
express those views in all mat-
ters affecting them, including
judicial proceedings.”
Nor are there any excep-
tions—not even for high-con-
flict cases, or cases involving
domestic violence or parental
alienation. The Convention, she
says, “does not give decision
makers the discretion to dis-
regard the legal rights con-
tained in it because of the par-
ticular circumstances of the
case or the view the decision
maker may hold about chil-
dren’s participation.”
Justice Martinson accepts that
there can be dangers involved in
soliciting children’s views, but feels
these dangers can be managed.
First, she says, while children have
a right to express their views, they
are not required to do so. They can
choose not to.

Second, there must be a determination of whether each child is capable of forming and expressing his or her own views. The court must consider both the maturity of, and any influence on the child.

OLGASOLOVEI / ISTOCKPHOTO.COM

Third, while children have a voice, they are not being asked to make the decision. That responsibility ultimately rests with the parents, or the court.

Fourth, the views sought are not limited to the central issue. They are just as valuable if they express the child’s concerns, questions and lived experiences generally.

Fifth, there are many ways in which those views can be obtained, ranging from the less structured and secure (letters, tapes or actual testimony from the child), to the more protective and professional (judicial interviews, views of the child reports, full custody and access assessments or child advocates).

In concluding, she writes:
“More than just lip service must
be paid to children’s legal rights to
be heard. Because of the import-
ance of children’s participation to
the quality of the decision and to
their short and long term best
interests, the participation must
be meaningful; children should:
“1. be informed, at the begin-
ning of the process, of their legal
rights to be heard;

“ 2. be given the opportunity to fully participate early and throughout the process, including being involved in judicial family case conferences, settlement conferences and court hearings or trials;

See Children Page 13

FABRIZIO MARIANI / DREAMS TIME.COM

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