I am grateful to Lois Nightingale , the author of this document who has given me permission to use it.

BILL OF RIGHTS OF CHILDREN

~By Lois V. Nightingale, Ph.D.~ 

Children have the right to:

1. Continue to love both parents without guilt or disapproval (subtle or overt) by either parent or other relatives.
2. Be repeatedly reassured that the divorce is not their fault.
3. Be reassured they are safe and their needs will be provided for.
4. Have a special place for their own belongings at both parents’ residences.
5. Visit both parents regardless of what the adults in the situation feel, and regardless of convenience, or money situations.
6. Express anger and sadness in their own way, according to age and personality (not have to give justification for their feelings or have to cope with trying to be talked out of their feelings by adults).
7. Not be messengers between parents; not to carry notes, legal papers, money or requests between parents.
8. Not make adult decisions, including where they will live, where and when they will be picked up or dropped off, or who is to blame.
9. Love as many people as they choose without being made to feel guilty or disloyal. (Loving and being loved by many people is good for children; there is not a limit on the number of people a child can love.)
10. Continue to be kids, i.e. not take on adult duties and responsibilities or become a parent’s special confidant, companion or comforter (i.e. not to hear repeatedly about financial problems or relationship difficulties).
11. Stay in contact with relatives, including grandparents and special family friends.
12. Choose to spend at least one week a year living apart from their custodial parent.
13. Not be on an airplane, train or bus on major holidays for the convenience of adults.
14. Have teachers and school informed about the new status of their family.
15. Have time with each parent doing activities that create a sense of closeness and special memories.
16. Have a daily and weekly routine that is predictable and can be verified by looking at a schedule on a calendar in a system understandable to the child. (For instance: a green line represents the scheduled time with dad, and a purple line represents the scheduled time with mom, etc.)
17. Participate in sports, special classes or clubs that support their unique interests, and have adults that will get them to these events, on time without guilt or shame.
18. Contact the absent parent and have phone conversations without eavesdropping or tape-recording.
19. Ask questions and have them answered respectfully with age-appropriate answers that do not include blaming or belittlements of anyone.
20. Be exposed to both parents’ religious ideas (without shame), hobbies, interests and tastes in food.
21. Have consistent and predictable boundaries in each home. (Although the rules in each house may differ significantly, each parent’s set of rules needs to be predictable within their household.)
22. Be protected from hearing adult arguments and disputes.
23. Have parents communicate (even if only in writing) about their medical treatment, psychological treatment, educational issues, accidents and illnesses.
24. Not be interrogated upon return from the other parent’s home or asked to spy in the other parent’s home.
25. Own pictures of both parents.
26. Choose to talk with a special adult about their concerns and issues (counselor, therapist or special friend).

Dr. Lois Nightingale, Ph.D. is one of the very few psychotherapists licensed both as a Clinical Psychologist and as a Marriage, Family and Child Counselor. She has written the Bill of Rights of Children in order to assist families in understanding how conflict between parents can affect children after the separation. The Bill of Rights of Children, in our view, assists parents in returning the focus of parenting back to the children and in seeing potential conflict from the child’s perspective.

She is the author of the book, My Parents Still Love Me Even Though They’re Getting Divorced, a story/workbook for children and parents facing divorce. Her private practice is located in Yorba Linda California.

This blog post is published by:  Val Hemminger, family law lawyer

Re-printed here with permission

I am often asked this question:  When do the courts listen to a child about where the child wants to live?  When does a child get their say?

I would say, as a general rule of thumb, the courts start to talk to kids (even directly, sometimes interviewed by a judge in their chambers) when they reach the age of 11 years old or 12 years old.  At the same time, some judges are totally reluctant to bring kids into the courthouse,

Although 11 years or 12 years old is a general rule of thumb, a judge will take into account how mature or how not so mature any particular child is.  So, as with many questions about family law, although there is a general rule, the usual “but it depends on the circumstances” comes into play as it does with many family law questions.

In order to get around the whole issue of a child speaking to a judge in their chambers, parents or their lawyers will often order a report called a “Views of the Child Report.”  These reports are prepared often by a counsellor or child psychologist.  The counsellor or child psychologist interviews the child in a less formal atmosphere than a court.  The professional who is chosen because they are to have skills talking to children talks to the child in order to get an understanding as to what the child may want.  The counsellor will find out “from the horse’s mouth” about where the child wants to live.

Parents often believe that if a child states who they want to live with, that it settles the matter.  This is not the case at all.  Although courts will start listening to children at the appropriate age and will give their opinion “great weight”, they will not necessarily acquiesce to the child’s wishes.  The court will also take into consideration other factors when making a decision that relate to the best interests of the child.

In essence, there are other factors in a case that support what is in a child’s best interest despite their own view.

Sometimes the courts will award against a child’s wishes if the court believes it is in the best interest to do so.  In one particular case the court found that the underlying reason why the child wanted to live with one parent rather than the other had more to do with the desire of this young adolescent to live in an environment with few restrictions than there would have been in the other parent’s home.  I also recall a case I worked on where despite 2 teenagers stating that they wanted to live with their mother, the court awarded against that wish due to the fact that it was the father who was more prepared and present to deal with the special needs associated with one of the children.

With all this in mind, courts also do consider what is reasonable in the circumstances.  At the end of the day, I always tell my clients that teenagers “vote with their feet.”  At the end of the day, it is often very difficult to get a teenager to do what they don’t want to do, and this is particularly so when it comes to where that teenager is choosing to live.

by Val Hemminger

Family Law Lawyer

Hemminger Schmid

Even infants, in my view, can pick up the energy and experience of their parents in a meeting.  Infants can understand what is going on way more than we give them credit for.  It is for this reason, that I ensure that children are not present during office meetings between lawyers and parents.

It is also my practice to remind parents of the importance of ensuring that they do not discus the conflict in front of their kids or around their kids.

On this one particular occasion, my client brought her 4-year old daughter to the meeting stating that she was unable to find child care for our meeting.  I indicated to my client my usual practice of not having the child present, but decided to make an exception in order to allow the meeting to proceed.  We brought out some crayons, and paper and the little girl played with those and played with her infant brother who was on the floor of my office on a blanket playing with various toys.

I decided that we would not be discussing anything relating to the facts associated with my client’s case as it related to this little girl and her father’s request to see her and  to build a relationship with her.  My client did not want the father to see the little girl.  She at first cited it was because he was violent in their short-term relationship.  Then she stated it was because he had not shown an interest in his daughter.  She later said she did not want him to see her because he had alcohol and drug problems.  Her latest reason was that he traveled for his work and that any access he had could not be consistent.  I will not get into it here, but let’s just say that there was very good evidence in the end to show that none of these allegations were not even close to being true.  I did not, however, know that at the time.

I did know that the mother, my client, had not been letting the father see their daughter for a number of months.  My client had moved on to marry a different person who the little girl referred to as her Dad.

This little girl was truly intelligent, and amazing.  She was inquisitive and excited about her world.   While in my office, the little girl busily got to work, playing with her little brother, chatted away happily, and drew pictures with the colourful felts I gave her to draw with.  I was impressed by who this little person was.  Clearly, she was smart and a really great kid.  Clearly, she was a joy of a person.

Then the first really disturbing thing happened.

It happened when I said to my client, “You have a very smart little girl.”  My client said, “Yeah, too smart.”  She said this with consternation in her voice and clearly with a tone of disapproval.  Seriously.

What kind of home culture is this little girl being raised in?  Is she to apologize for her intelligence?  Is she to dumb herself down in the interest of pleasing the adults around her? Clearly this client of mine thought it was okay to describe her little girl as “too smart.”  Yikes!

Then the second really disturbing thing happened.  The little girl, who had not seen her father in many months looked up from the picture she was colouring and stated “My Daddy wants to take me away from my Mommy and not give me back.”  This was an allegation made by the mother, but once again, the father’s actions did nothing to demonstrate any such thing.

Clearly discussions had occurred around this child.  I ended the meeting and set a new one.

Next time I saw my client (this time without her child present) I asked her about what the little girl said.  My client, although denied talking about the matter to the child, acknowledged that she had spoken about it near the child and in her presence.  She did acknowledge this.

I had spoken to my client numerous times regarding the damage that talking about the other parent in a negative way can do to a child.  It steals their childhood, in my view.  It damages and pollutes their thoughts.  It causes them unnecessary worry.

This mother could not get how her comments affected her little girl.  She could not see how it was important to put her daughter’s needs and well-being first.  I ultimately stated that I would not continue acting for this particular client given the fact that she would not follow my advice about not bringing this child into the conflict.  I believe there went on to be a custody trial and I think everyone will have lost, particularly this little girl, whose mother could not understand the impact of her toxic comments.

By Val Hemminger, Family law lawyer, Hemminger Schmid

Some people believe that mediation is kinder and gentler than court.  In mediation we are asking parties who were not able to work out their relationship difficulties to sit in front of one another to discuss and settle the most important concerns they are facing.  We are asking them to sit in front of one another and discuss how they will parent their children, how they are going to divide their assets, how much spousal support (if any) is going to be paid, and what amount of child support will be paid.  The answers to these questions are at the forefront of each person’s  mind when separating from a spouse.

Although people may have been the one to finally end a difficult marriage or relationship, they often feel like they are literally swimming out into the abyss of the unknown.  People feel vulnerable, afraid and totally raw.  Yet, we are asking them to sit across from the person who they feel has hurt them, humiliated them, and the person who has not understood their legitimate concerns.  In 15 years of doing this work, I have never acted for someone in a family law matter where they think that they were in the wrong and the other person was in the right.  We are asking them to sit in front of the person who has wronged them when they are so right.

So, I do not agree that mediation is kinder and gentler than court.  Yet, I do think it is worth it, almost every single time.  I liken it to ripping off a band-aid.  It is painful, quick, and done (save and except for the festering wound that may be left behind to heal).  This is way better, in my view, than having the litigation last for sometimes years.  People often feel like they cannot wait to get on with their lives until they are finished dealing with all of the issues that need to be settled in their family law dispute.  Mediation is quicker to set and way less formal.

So, the thing I find that is kinder and gentler about mediation is that it has a great likelihood of ending the dispute.  It is also way less money than going to court virtually every time.  It is not kinder and gentler at all.

Rather than spend the next 18 months of your life obsessing and worrying abut what will happen:  how is parenting going to work?  How are we going to divide our assets?  How much will I have to pay?  Will I have a continued relationship with the kids?  Will he or she go for my throat?

You know the answers to these questions and can move on.  So, it is a good reason to think about it, even in the most impossible, cases.

Written by Val Hemminger

It is the parents’ responsibility to communicate successfully with your child, meet their needs, for safety and support,  take care of yourself, maintain a civil relationship with your ex will (if at all possible) and remember that your child is picking up on all of your social and emotional cues.

Given the right support, your child will be able express their feelings, grieve their loss, and emerge from this unsettling time a stronger more resilient person.

Written by Val Hemminger

The new Family Law Act places the safety and best interests of the child first when families are going through separation and divorce.  This means that when deciding about children, family law professionals have only this to consider.

This replaces the current Family Relations Act that says that the best interests of the child are to be considered paramount when making decisions about children.

Section 37 reads:

37  (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2) To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following:

(a) the child’s health and emotional well-being;

(b) the child’s views, unless it would be inappropriate to consider them;

(c) the nature and strength of the relationships between the child and significant persons in the child’s life;

(d) the history of the child’s care;

(e) the child’s need for stability, given the child’s age and stage of development;

(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;

(g) the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;

(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;

(i) the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;

(j) any civil or criminal proceeding relevant to the child’s safety, security or well-being.

(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.

(4) In making an order under this Part, a court may consider a person’s conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.

Although the current Act does mention that parental conduct is relevant as it affects factors that relate to the best interests of the child, the language in the new Family Law Act is stronger.  The best interest of the child is the only consideration that must be taken into account according to this new legislation.

It anticipates that parental conduct, as it has affected children, will be taken into consideration when making decisions about parenting.

This is important for kids in that it demonstrates clearly that how a parent behaves is totally relevant when it comes to parenting.

Written by Val Hemminger

The New Family Law Act is really blowing my mind.  I just checked to confirm that I was right about this and I was.  The current Family Relations Act does not even define family violence or mention it.  The new Family Law Act not only defines it, but gives it an expansive definition.

I took a course years ago when I did my master’s degree in sociology about violence.  It demonstrated that violence has a broad or narrow meaning.  The narrow meaning refers to physical force such as a punch in the face.  The free online dictionary by Farlex defines it as:  Physical force exerted for the purpose of violating, damaging, or abusing.

But is violence not more than physical force?  It appears that our legislators agree.

Not only does the new Family Law Act define family violence but it also gives a broad definition as to what violence includes.

The new Family Law Act defines family violence as follows:

“family violence” includes

(a) physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,

(b) sexual abuse of a family member,

(c) attempts to physically or sexually abuse a family member,

(d) psychological or emotional abuse of a family member, including

(i) intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,

(ii) unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy,

(iii) stalking or following of the family member, and

(iv) intentional damage to property, and

(e) in the case of a child, direct or indirect exposure to family violence;

As a family law lawyer, one of the huge struggles I have often had is to demonstrate in parenting disputes, how family violence impacts children.  Often we have situations where a spouse was abusive and controlling around the children but not to the children.  For some reason, this has meant that the abuse and control was often considered not so serious by the courts when determining what was in the best interests of a child.

I have always believed the exposure of a child to violence in their family life is profound.

This legislation will have an impact in how the courts see family violence and it will impact decisions for families where family violence has been a way of life. This will ultimately have an impact on decisions regarding which parent in a parenting dispute can handle the responsibility of parenting.  Ultimately, because it makes family violence count, children will have a greater likelihood of being raised in homes where a parent understands the impact and does not use bullying, coercion, threats, or hitting to get their way.  This can only be a good thing for the future of our society.

It is also exciting that the legislation recognizes that violence is not simply physical, but that it includes other serious behaviors, all of which have a significant impact on the well-being of children.

This is a significant step in demonstrating to our children that there is a better way.

Written by Val Hemminger

The New Family Law Act will replace the Family Relations Act which came into force in 1972!  This means that the legislation relating to matters affecting families has not been substantially over-hauled or updated in 40, yes, 40 years.  A thing or 2 has changed since 1972 and our government is finally attempting to catch up.

It is anticipated that the New Family Law Act will come into force in 2013. 

The new Family Law Act replaces British Columbia’s current legislation which is the Family Relations Act. It has many progressive elements in it, including legislation relating to the following:

ü  putting the best interests of children first;

ü  presumption of equal parenting at the outset;

ü  emphasizing out of court resolution to family law conflicts, having court be a last rather than a first resort

ü  focusing on parenting responsibilities rather than rights;

ü  expanding the meaning of what constitutes the best interest of children from what it means now;

ü  what is to happen if a parent wishes to move away from the other parent with a child,

ü  law relalting to assisted reproduction which is happening more and more often

ü  it takes family violence into account

ü  it recognizes that abuse can be about much more than physical violence and verbal abuse

ü  when people do not listen to court orders, there can be actual repercussions for them

So, like many, I am concerned about change because I am unsure as to how it will all play out and wondering specifically how this is going to impact British Columbian children.  At the same time, I think it is time and change is long overdue. 

I cannot count how many times I have had a separating mother or father come to my office and say they want “custody.”  When I ask them what “custody” means to them, they often have no real idea what they mean when they say that. 

The new Family Law Act does not mention the word “custody” in a way that causes people to fight for it as our current legislation does.  Currently, custody battles are often nothing short of ridiculous and often embitter parents towards one another and destroy children’s childhoods by putting them deep in the middle of hopeless and never-ending conflict. 

Often “custody” battles are waged where parents are unaware of the meaning as to what they are fighting so desperately for.  A focus on parenting responsibilities rather than on the struggle for custody is going to go a long way to take the children out of the middle of such conflict. 

What is mediation and why mediate?

What is mediation?  Some people describe it as an alternative form of dispute resolution.

It is a way of resolving disputes between 2 or more parties.  I will talk about here in the context of disputes in family law.  A neutral third person, the mediator, trained in dispute resolution and interest based negotiation,  assists the parties to negotiate their own settlement.

In some cases, mediators may express a view on what might be a fair or reasonable settlement, generally where all the parties agree that the mediator may do so (evaluative mediation).

I do not think that mediation is at all an alternative form of dispute resolution anymore.  It is common and it is a mainstream way of dealing with disputes rather than turning to the courts and judges to resolve your dispute.  While mediation may have been considered “alternative” this may have been 10 or 15 years ago, that is not the case now.  People who have a dispute turn to mediation more and more often.  Rather than take years or months to come to a resolution for a matter, parties (particularly people in family matters such as custody, division of assets, child support, and spousal support) are able to come together for one day and have their dispute resolved.

Should you bring your lawyer to mediation?  We almost always recommend that your lawyer is present for the mediation process because that way when the matter is settled, it is settled.  The down side to not having everyone’s lawyer there is that sometimes people reach an agreement subject to their lawyer’s approval.  Then the lawyer reviews the agreement and recommends against it.  Often agreements are reached and certain things are left on the table in order to make the deal happen rather than continue the fight.  I have seen this happen a lot.  An example is that someone may be entitled to $1,500 per month spousal support, but they instead to take less because they end up with the entire value of the family home rather than half of it which is what they may only been entitled to.  The person may do this because it makes more sense to them financially due to an expensive housing market or other reasons.  In any event, the context of what happens at mediation will not necessarily be known to the lawyer who is giving final legal advice on an agreement.  So, it tends to save time and money in the long run to have the lawyers present.

Why mediate?  Mediation has a structure, timetable and dynamics that “ordinary” negotiation lacks. Parties are able to resolve their disputes in much more creative ways than a judge can.  Solutions can be ones where there is no “win” and “lose” position but more of an opportunity to allow all parties to have their needs and interests met.   The process is private and confidential.

The most important point is that mediation, although often voluntary still results in an agreement that is totally binding.  That is, if the parties make an agreement and that agreement is reduced to writing and signed by everyone, it is binding legal agreement.  In British  Columbia (I am sure this is the case elsewhere also) the agreement can be registered with the court and have the same power as a court order.  So, it is less painful, less time-consuming and ends up being way less costly than being heavily engaged in the often long and drawn out court process.

Some mediators and lawyers believe that mediating the dispute will allow parties to reach a new understanding with one another.  They think that this new understanding may result in the parties having new-found respect and compassion for each other.  I do not know if I hold up the same amount of hope for the process.  That is, I am not at all convinced that one day in mediation (or a few days) will sort out the massive amounts of misunderstanding, resentment and anger that separating couples often have after they have separated.  Often the resentment, anger and frustration parties have towards one another builds up over a period of many years – it is asking too much of the mediation process to get all this fixed in the course of a day or 2 with lawyers present.  At least I believe this to be the case in the family law context.  I believe if parties were able to fix and resolve such challenges within their relationship, they would stay together rather than go through the whole painful, expensive and disruptive process of separation.  At the same time, I still whole-heartedly believe that mediation can work wonders to allow people to be able to move on with their lives on a quicker, less expensive and less tortuous basis.

So, try it.

I have seen even some of the most difficult and seemingly impossible cases settle because of mediation.  I often have  cases settled with the same result or better for my client than they would have gotten if we had gone to trial.  My clients have not only been able to save countless thousands of dollars by proceeding to mediation, they have been able to significantly reduce the tremendous stress (and some people would say agony) of ongoing litigation. They are able to close a chapter in their lives and move forward. They are able to have the answer to many “what if” questions that they have had.  They are able to do it for less cost to them emotionally and financially.

Written by Val Hemminger

During this time period I also learned a lot about how I had been interacting with her and how I was viewing her.  I learned that I had been judging her because she was not as “motivated” as I wanted her to be.  I was concerned that she was not pursuing post-secondary education right out of high school.  I was concerned that she was not moving fast enough in her own life. My husband said “the story is not over yet.”

She has come back into our lives and I have apologized to her for not fully appreciating her as a whole, intelligent and complete person with depth.  I finally get that she is on her own journey.  I finally get that I can love her completely for who she is and know she will get it right in her own way on her own path.  It was me who needed to understand her.  I needed to understand and appreciate the many differences between us and not get all fussed about it.  She has chosen lovely friends and has beautiful values.  And the story is not over.

A new chapter has begun for us in our very blended family.  She taught her 8-year old little sister to braid the other day using blades of grass.  Beautiful.  I finally get it that the story is not over yet and it never was.

And I look forward to enjoying the rest of it, even the future bumpy parts.

Thank you Cimon, for teaching me about something that I needed to learn for my own story.

Written by Val Hemminger