Family Law Proceedings Research Articles

Subjects with agency? Children’s participation in family law proceedings

Galvanised by the UN Convention on the Rights of the Child, many jurisdictions now recognise children’s rights to participate in decisions that affect them. While such legal rights have increased, research on family law proceedings shows how children’s views can still be undermined, ignored or not even sought in decisions about them. This article uses the academic resources of childhood studies, to consider dominant and alternative narratives of children’s participation within Scottish family law. Drawing upon reported case law and empirical research, the article concludes that children’s participation gains protection by being institutionalised but children’s participation is attenuated because it is not recognised as relational and contextual. As rationality, consistency and autonomy are privileged, the weight given to children’s views is lessened by concerns about children being manipulated or distressed. Courts and their decisions may be child-focused, centring on children’s welfare, but they are not child-inclusive, involving children in decision-making.

Mental Disorders in Children and Parents in Family Law Proceedings: Cases on Child Protection Matters Versus Child Custody and Visitation Issues

Psychologists can contribute considerably to decision making in family law proceedings. The mental health of the parents and the children forms an important factor in psychological evaluation. It is the overall aim of this study to specifically examine the occurrence of mental disorders in evaluated family members in cases of termination of parental rights as opposed to cases of child custody and visitation rights. This data are based on 297 psychological evaluations completed between 2008 and 2012 at an evaluator association in Bremen, Germany. In this retrospective content analysis, evaluation reports were examined for indications of mental disorders in children, mothers and fathers. The data were assessed in bivariate analyses and logistic regression models. A total rate above 39 % indicates a comparatively high exposure to mental disorders of children and adolescents in this sample. A mental disorder of the mother and a mental disorder of the father occur significantly more often in cases of termination of parental rights than in cases of child custody/visitation rights. Children and adolescents who showed aggressive-dissocial behavior and aggressive-oppositional behavior were significantly more likely to be evaluated in legal issues of termination of parental rights as opposed to child custody/visitation rights. Restrictions in parental mental health and parenting capacity should be carefully weighed against restrictions in the mental health of the children and their developmental needs when conducting psychological evaluation.

Covert Recordings as Evidence

Kelly Reeve, senior legal consultant and team leader for the Child Law Advice Service, considers the implications of cases concerning the use of covert recordings as evidence in family law proceedings

Psychiatric disorders in children and adolescents in family law proceedings. Empirical analyses from psychological expert assessment

This study examined the frequency and distribution of mental health problems in children and adolescents who had previously been psychologically evaluated in family law proceedings. The data stem from psychological evaluations (N=298) conducted between 2008 and 2012 at an evaluation institute in Bremen, Germany. The reports included were analyzed for indications of mental health problems by means of a content analysis. The total sample consisted of 496 children and adolescents. At least one mental health problem (according to ICD-F) was found in 39.5% of the children and adolescents. The comorbidity rate was 38.7%. Developmental deficits appeared in 12.3%, emotional or conduct problems in 22.8% of the sample. Furthermore, 11.5% were reported as having been victims of violence. Frequency distributions of mental health problems with respect to the juridical issues in question are given. These results provide a first empirical overview of mental health problems in psychologically evaluated children and adolescents. Our findings highlight the need for future studies to further examine mental health problems of children and adolescents in family court proceedings with respect to the juridical issues in question.

Judicial Meetings with Children in Australian Family Law Proceedings: Hearing Children's Voices

Australian family law judicial officers rarely take the opportunity to meet with children who are the subject of proceedings, despite the fact that the outcome of these proceedings will affect many important aspects of a child’s life. This appears to be at odds with the court’s obligation to regard the best interests of the child as the paramount consideration and the child’s right to participate pursuant to the United Nations Convention on the Rights of the Child. While it appears that the practice of judicial meetings with children is not encouraged in Australia, internationally there is growing support. Several countries have implemented guidelines or taken other steps to actively encourage greater use of the practice. In some countries, judicial meetings are carried out frequently, uncontroversially and successfully. Delegates at the 5th World Congress on Family Law and Children’s Rights in 2009 passed a resolution in support of judges considering whether to meet with a child in every case before them. This thesis looks at the benefits that can be gained, both for children and for decisionmaking, by judges meeting with children. These benefits are viewed within the wider context of how the right of children to express their views is exercised in family law matters and the literature on how children feel about their current level of participation in court proceedings. In determining what is in the best interests of a child, judges may be aided by a practice that enables them to learn more about a child’s needs and interests than via other recognised methods of hearing children’s views. The thesis explores the reasons why there are only a handful of cases in which Australian judges have met with children and discusses the main criticisms of the practice. The author conducted a unique empirical study to discover the views and experiences of the Australian family law judiciary about meeting with children. Utilising both qualitative and quantitative methods, the study involved in-depth interviews with four Family Court judges and a survey of all family law judicial officers in Australia. The results of the study make an original contribution to the field of judicial attitudes to children’s participation in family law. It was discovered that some problems discussed in the literature, such as due process and confidentiality, may be more perceived than real as judges were able to suggest ways to overcome them. The study found that many judges see strong benefits in meeting with children, but that they may be unable to overcome two lingering concerns. Judges perceive that they lack the skills and training to meet with children, and they are troubled by the prospect that judicial meetings may subject children to parental pressure or manipulation. The thesis makes recommendations to ensure greater certainty in the practice of judicial meetings with children. These include the implementation of Australian guidelines on when and how judicial meetings should be conducted. With recent child-focused changes to family law and practice, such as the Less Adversarial Trial procedure, and growing international discussion, it is anticipated that judicial culture may slowly change. With time, judges may consider the potential benefits of meeting with a child in every case that comes before them. It is argued that it is imperative they do so in order to give effect to the internationally recognised rights of children and the fundamental obligation of the family law courts to regard the best interests of the child as the paramount consideration.

Psychological evaluations in family law proceedings: A systematic review of the contemporary literature.

Over the past several decades, empirical research on psychological evaluations in family law proceedings has identified strengths and weaknesses in this important area of assessment (Bow, 2006; Saini, 2008). This systematic review aims to provide a current and comprehensive summary of empirical research findings on psychological evaluation practice. Twenty studies published from 1997 to 2013 in North America were included from a systematic literature search and analyzed in detail. Results are presented for a number of evaluation-related parameters, such as the kind of mental health professional evaluating, the assessment methods applied in evaluation practice, evaluator’s recommendations, and mental health characteristics of the evaluated families. Results are displayed both for evaluations in cases of child custody and visitation rights and for evaluations in cases of termination of parental rights. Current strengths and weaknesses in evaluation practice and evaluation research are discussed. Recommendations for practice and future research are considered.

Judicial Decision-Making in Family Law Proceedings

Judicial Family Law proceedings are peculiar; a large number of cases are never closed, until the children reach adulthood. We selected three variables to test whether they can explain the credibility of each party and agent in the proceedings: guiding principle that orients the court's decision, confirmation of maternal manipulation in the psycho-social report, and establishing credibility of the child's testimony. An incidental sample of 169 people was used. The three manipulated variables imply very different levels of credibility for each party to the proceedings. Finally, proposed modifications to court proceedings are suggested to ensure adequate protection of children.

The robust attitude of Australian courts in family law proceedings involving trusts; New Zealand Law Commission tinkers with trusts, and satirizes Prince Charles; whether the time has come for a Commonwealth counterpart of the American Law Institute; trustee investment, and portfolio theory--New Zealand and US perspectives; Letters of Wishes expertly analysed; how the Supreme Court might have decided Marley v

The robust attitude of Australian courts in family law proceedings involving trusts; New Zealand Law Commission tinkers with trusts, and satirizes Prince Charles; whether the time has come for a Commonwealth counterpart of the American Law Institute; trustee investment, and portfolio theory--New Zealand and US perspectives; Letters of Wishes expertly analysed; how the Supreme Court might have decided Marley v

Mission Critical: A Call to Action for Juvenile and Family Courts, the U.S. Armed Forces, and Veterans Affairs

This article describes an innovative court program to focus services and case processing on military families, both active and retired (veterans), who are involved in family law proceedings in the civil courts. The article examines the process taken from concept to implementation in one court, with focus on the interplay between the court and armed force support groups, and legal/court stakeholders focused on improved outcomes for military families in distress. Finally, the author briefly examines the possible reasons for the historical disconnect between the courts and the military (veterans and active forces), draws corollaries to existing federal support for other family matters, and posits a method to include the military family under the umbrella of federal attention. Key Points for the Family Court Community The ease with which the pilot went from concept to rollout bodes well for replication, even when no funding source is available This civil family docket is the perfect adjunct for communities with Veterans Treatment Courts There is an imperative need for the branches of service, VA, and the courts to communicate about this topic Only federal initiative, similar to what has already occurred in other areas of family law, can resolve the impasse

The erosion of psychiatrist-patient confidentiality by subpoenas.

We explore the reasons for the prolific use of subpoenas to gain access to psychiatric records in Australia. We examine the applicable legal principles and practices at the New South Wales (NSW) and Commonwealth levels, aiming to develop recommendations for Australian Governments to curb the inappropriate and harmful use of subpoenas. Unfettered legal access to psychiatric records is inconsistent with professional ethical guidelines and risks undermining the provision of quality psychiatric care to the community. The existing legal provisions are failing to protect psychiatrist-patient confidentiality. In NSW, the onus is placed on the psychiatrist and/or patient to make a complicated application to the court, to direct that a subpoena be set aside on the grounds of "Professional Confidential Relationship Privilege." An absence of Commonwealth legislation to protect psychiatrist-patient confidentiality is used by some litigants in family law proceedings to disadvantage patients by stigmatising them, because they have consulted psychiatrists. We recommend that uniform legislation be implemented, giving effect to a primary rule of privilege with exceptions.

Family Law Proceedings and the Child's Right to be Heard in Australia, the United Kingdom, New Zealand, and Canada

This article examines the child's right to be heard in family law proceedings in four international jurisdictions, comparing laws, practices, and attitudes relating to children's participation. It critiques the methods by which children's views are heard and discusses the significant variations in each country's approach to listening to children. The article discusses each system's strengths and weaknesses in promoting children's right to be heard, reviewing international literature and highlighting recent initiatives to promote children's participation, such as the 2010 United Kingdom guidelines for judges meeting with children.The article concludes that there is little consistency in how children's voices are heard in family law matters internationally. One possible explanation is that each jurisdiction differs in its culture of and attitude toward children's rights.Keypoints Children's views in family law matters Comparative analysis of law and practice in Australia, the United Kingdom, New Zealand, and Canada Child's right to be heard

The Automatic Stay In Family Law Proceedings: Do We Really Have to Stop?

AbstractSince family disasters often come in clusters, many family court judges aren't sure what can continue in their court and what cannot after one of the parties to the family court action files a bankruptcy case. The 2005 Act amendments expanded the exceptions to the automatic stay, so much will remain unaffected. However, a few proceedings still require bankruptcy considerations and perhaps an order for relief from the stay. This article is intended to remove some of the mystery of how the automatic stay affects family court proceedings.

Maryland's Family Divisions: Sensible Justice for Families and Children

In January 1998, the judges of the Court of Appeals of Maryland signed Rule 16-204 and formally launched the process of family justice system reform in Maryland. During the ensuing fifteen years, Maryland became a national model in this area. These changes and improvements occurred largely because of the inspirational leadership of Chief Judge Robert M. Bell, a man owed a debt of gratitude by everyone involved in family law proceedings, including families, children, attorneys, judges, court personnel, and services providers, among others.This Tribute honors Chief Judge Bell by contextualizing the enormity of the process and outcomes resulting from his guidance and oversight. It will begin in Part I by identifying the causes underlying the impetus and need for family justice system reform in Maryland. Part II will explain what Maryland Rule 16-204 does, the process surrounding implementation of the rule, and the mechanism for continued oversight of the state's family justice system. Part III will then describe the impact of the reform effort. The Tribute will conclude with a glimpse into the future and likely evolutions affecting Maryland's family justice system.

Children's Lawyers: 'Seeing' Children

Lawyers’ attitudes to children influence the extent to which they offer children opportunities to participate in legal decisions. This article offers empirical insights derived from research undertaken with children’s lawyers who practise in New South Wales in family law, child protection and criminal proceedings. The research reveals that lawyers give different emphases to their relationships with children, and there are variations in practice within and between jurisdictions. There is currently no shared understanding of the rationale for children’s participation. The author proposes practical strategies aimed at resourcing, training and selecting children’s lawyers so that they facilitate children’s participation more effectively.

Court-Ordered Assessments of Family Resources in Family Law Proceedings: The Technical Advisor and Other Non-Juridical Professionals Compared and Contrasted

AbstractThis study provides a reconstruction of legal framework surrounding break-up proceedings in order to observe overlaps in responsibilities of and relations between social services and court-appointed technical advisor and technical advisor chosen by parties.Keywords: proceedings; interests of minor; parenting responsibilities.1. The reform of shared parental responsibility and conciliation toolsFrom a legal viewpoint, as a complex social phenomenon, shows clear signs of a shift towards privatization of relevant institutions and of relations, above all due to exoneration from general clauses that, in different ways, sanctioned a sort of inviolable sacredness of institution of family: reveals its meaning as a method of protection, inasmuch as it is a summary and compendium of principles designed to protect its members in place of aforementioned general clauses - imbued with language of advertising - such as family unity and the interests of family, which have now assumed a different meaning. Family relations, a field in which field system tends to intervene ever more decisively in order to ensure a significant area of autonomy for them, have taken on a new form of functionalization compared with theoretical framework of 1975 reform. The most interesting part of this functionalization is creation and deliberate promotion of protection of minors and their right not only to a but to a that generally meets a number of criteria for suitability. From this reflection, which helps to regenerate a judicial culture inspired by and built around protection of minors, we cannot but note sharp increase in numbers of families turning to professional social services in hope of obtaining support and advice in highly complex situations, and a greater use of expert consultations (with court-appointed and part- appointed professionals) in court proceedings.The reform of shared parental responsibility, before introducing regulations whose content is only innovative in some ways, had idea (and through this merit) of engraving prescriptive principle of shared parenting responsibilities on system, a principle that was already in force in context of break-ups: as a manifestation of right to two parents, it expresses right of offspring to receive care, education and upbringing from both parent figures, thereby being set as main premise of whole regulatory framework. The principle introduced by new system, which has given quite significant validation to its contents, also constitutes an operative principle in a number of European contexts and is, in brief, aimed at protecting rights of underage offspring and searching for best way to re-arrange in light of break-up in order to maintain a situation that resembles as closely as possible one experienced during normal married life of couple. In light of this principle, newly introduced regulations are designed to protect and promote minor's real need to maintain a balanced and continuous relationship with each parent, so that whole subject of break-up is informed by principle of sharing not only nominal parental responsibilities but also active parenting roles, in consequence of offspring's right to have two parents. This is why legal reference contained in incipit of regulations, which sanctions offspring's right to preserve significant relationships with ascendants and relatives from both of their parents' families, is remarkable. The stipulations of new regulations, by introducing a principle that is widely accepted in theoretical terms but has often shown itself to be problematical in its application, identify not so much and not only right of ascendants to exercise visiting rights regarding offspring, but rather a general principle of protection relating to upkeep of significant affective and social relations with their ascendants despite termination of parents' marriage and assignment of custody, in order to guarantee the affective charge human being cannot do without at time of his formation. …

Pedagoger i det sociala uppdragets gränstrakter

Pedagogues in the borderland of their social task: dealing with family law proceedings, threats and violenceDrawing upon an explorative study of family law proceedings from a school perspective, the aim of this paper is to examine the school staff’s strategies for solving or coping with problematic situations in this context. Gendered conflicts between adults and violence are extreme cases for pedagogues in school and preschool. How do the staff cope with their own and the children’s vulnerability? Based upon interviews with 22 informants, the staff’s strategies are outlined and discussed in relation to organizational and professional circumstances and intersecting social relations of power. An analytical construction of six types of proactive and reactive strategies, ranging from distance keeping to normalization of own exposure, is utilized in the analysis. Findings suggest that the staff’s strategies to handle challenging events in this context vary with the parent’s gender, class position and ethnicity. Further, it is argued that creating a sense of safety and promoting learning among the children may be obstructed by lack of support from the school’s organization, demands on staff to perform customer oriented attitudes towards parents and lack of clarity concerning the limits of the social task. Conflicts between the organization and profession on the one hand and the educational and the social task on the other hand, are thus illuminated. In conclusion, a further aim of this article is to contribute to broader discussions on men’s violence against women and children – in families as well as in workplaces and in the intersection between these two areas.

International Models of Child Participation in Family Law Proceedings following Parental Separation / Divorce

This article reports on the findings of a 2009 survey conducted under the auspices of the Childwatch International Research Network about how children’s participation rights, as set out in Articles 12 and 13 of the UNCRC, are respected in private family law proceedings internationally. Court-based and alternative dispute resolution processes and the roles of relevant professionals engaged in child-inclusive practices are considered, as well as religious, indigenous and customary law methods of engaging with children. The findings from the 13 participating countries confirm an increasing international commitment to enhancing children’s participation in family law decision-making, but depict a wide variety of approaches being used to achieve this. Case studies from Australia, India, Israel and New Zealand are included to illustrate differing models of children’s participation currently in use in decision-making processes following parental separation.

Participation for children exposed to domestic violence? Social workers' approaches and children's strategies

This article explores social workers' approaches to children exposed to domestic violence and children's strategies in encounters with these professionals in the context of family law proceedings. Investigator approaches as well as child strategies are reconstructed from children's narratives. Furthermore, possible links between the social worker's approach described by a particular child, and the child's own strategies are outlined. Participation can offer children validation of their experiences and support their recovery after exposure to violence. However, it is suggested that it seems to be a challenging task for social workers to both validate children's experiences of violence and simultaneously offer them participation in the investigation process.

Doing violence to family law

This article discusses the nature and implications of the proposed Legal Aid cuts in family law cases raising issues of domestic abuse. It outlines the proposed inclusions within and removals from the scope of Legal Aid for private family law proceedings set out in the Green Paper, Proposals for the Reform of Legal Aid in England and Wales, charts the progress of the proposals from the Green Paper to the Legal Aid, Sentencing and Punishment of Offenders Bill 2011, and considers their likely impacts on women and children affected by domestic abuse. It also considers the potential interaction between the Legal Aid reforms and the Family Justice Review, and suggests desirable amendments to both.

Family Law Proceedings, Domestic Violence and the Impact upon School: A Neglected Area of Research

The aim of this article is to open up a discussion about an unexplored area of children’s lives at school. While there has been considerable discussion of issues about child protection and the cooperation between school and social services in that context, studies on the intersection between school and family law proceedings seem virtually non‐existent. This is also the case when it comes to family law proceedings and different forms of childhood adversity. Drawing upon previous and ongoing research on family law and domestic violence in Sweden, together with a number of other existing studies on children and domestic violence, this article outlines the potential impact of family law proceedings upon school as well as issues requiring further research exploration.