Suggestions for a divorce process truly in the best interests of children (1)

Abstract

Divorce is pre-eminently a matter which may affect children negatively. As such it triggers the obligatory application of the best interests of the child standard and the principle of child participation. However, it appears that this standard and principle are not effectively upheld and complied with in our legal system. The adversarial system of litigation undeniably exacerbates the risk factors for children upon divorce or family breakdown because it encourages and increases conflict between children’s parents, counters authoritative parenting, leads to the absence of the non-caregiving parent and causes a decline in the standard of living of the caregiving parent (and the children). There is also no unanimity as to how and when children’s voices should be entertained in the legal process. In addition, the adversarial system of litigation causes especially contested matters to be unnecessarily protracted and excessively expensive. Consequently, a radical reshaping of the legal system is proposed in the period before, upon and after divorce. As far as pre-court processes are concerned, suggestions are made, first, for a new intake point or procedure away from attorneys and the courts where parents could be educated about the effects of divorce on children, children could be informed about the process and families could be triaged and referred to an appropriate service or structure and, secondly, for a mandatory child-informed mediation process in which children could participate and in which their best interests would be the focal point for all negotiations. Alternatively, a call is made for a collaborative divorce law process in which a neutral child specialist might be appointed to bring the voice of the child into the negotiations between parents and their legal representatives. With regard to the court process, proposals are set out for a less adversarial trial in which the presiding officer would play a more active role and children would have an input throughout the process through the involvement of the mediator in a new and innovative manner. With respect to the post-court process, recommendations are made regarding the practice of parenting coordination (facilitation or case management) in a way that promotes children’s best interests and their participation in the process. Ensuring that the best interests of children are the focus in all pre-court, court and post-court processes will represent a sound investment in family stability and productivity despite the occurrence of divorce.