Maryland Bar Bulletin
Publications : Bar Bulletin : February 2005

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Empowering the Child
By Michael Milgraum

At a recent Maryland Mediators’ Convention, there was a lively session in which participants discussed and debated options for involving children in the divorce mediation process. While everyone agreed that at least before adolescence children should not actually attend divorce mediation sessions, there were differences of opinion about how and if to ask these younger children about their custody and visitation preferences. Some individuals felt it was important to question all children about their preferences because this is important information to be considered during the mediation. Others were concerned that the question may place undue pressure on the child to “choose sides.” One mediator noted that he regularly includes adolescents in mediation when discussing custody and visitation. In fact, he said, he has found some of the adolescents to be the most “healthy” ones in the room and that they keep the discussion from getting derailed into pettiness, blaming and mutual obstruction.

The purpose of this article is to give some psychological recommendations that have bearing on this debate. But before doing so, consider another situation that raises similar questions. This is a true story: Joe (name changed) is a nine-year-old whose treatment team is meeting for his Individual Education Plan (IEP) review at his special education school. Joe has been disrespectful to teachers, ignoring their directives, often whining and yelling in response to teacher requests and running out of the classroom to avoid disciplinary action. Joe frequently tells his teacher, “You can’t tell me what to do. It’s not fair. I’m going to call my lawyer.” His treatment team wants to use this meeting to discuss possible interventions. His lawyer is present at the meeting. Although the treatment team believes the boy is too young to attend the meeting, the lawyer insists that it is the boy’s right to attend. Because the parent agrees, the boy joins the meeting. The boy’s problems are discussed, and then the lawyer turns to the boy and asks him to explain his behavior. The boy stares at the floor and mumbles something. “What’s going on?” the lawyer asks again. The boy breaks down crying, and no one can get anything more out of him.

What do these two situations – involving children in custody/visitation discussions and including them in an IEP meeting – have in common? The common factor is the issue of empowerment, and the common question is: how can adults empower children in a healthy sense? As a lawyer, one can become so focused on an adult notion of rights and due process that he or she can loose sight of the psychological needs of children. In Joe’s case, something had gone seriously wrong in the system intended to help the child if he regularly complained to the teacher that he would get his lawyer to intervene in her classroom practices. Joe had developed the notion that the classroom was a place to vigorously advocate for his rights rather than a place to cooperate and learn. Further, the child’s reaction in the meeting shows the true psychological impact of giving too much power to a child – the child breaks down. It becomes too much of a burden for the child to carry. He becomes confused and overwhelmed, and the only thing left to do is cry. His tears spoke more eloquently than words – informing all present that he needed someone to give him structure, support and discipline, not more “rights” or “a voice” before a tribunal.

How do we apply these insights to the question of the children’s preferences in custody and visitation? According to Dr. Elizabeth M. Ellis, author of the comprehensive book Divorce Wars, most evaluators avoid asking preferences of children who are younger than ages 12-14. Evaluators take this position because asking such a child the question will tend to create feelings of divided loyalties, anxiety and guilt. In addition, children below age 12 may believe that they need to “choose a side,” which could so strengthen their alliance with one parent that their relationship with the other parent significantly deteriorates. This avoidance of asking children younger than 12 should apply across the board, to mediators, lawyers or judges, because the same dynamics will operate regardless of who asks the question.

As for adolescents, it is acceptable and often important to ask them the questions about custody/visitation preferences; however, care must be taken even with them. The questioner must clarify that the youth’s input does not decide the question by itself, but it is important information that responsible adults will consider in making the decision. As for inclusion of adolescents in the divorce mediation, this is generally a bad idea. No child, regardless of age, needs to be thrust into the center of his parents’ battle. Even if the adolescent wants to attend the session, the psychological effect of his direct involvement in his parent’s personal discussions could be profoundly negative and long-lasting. In addition, even if the youth has been inappropriately involved in the parents’ dispute prior to mediation, continuing this pattern in mediation will merely exacerbate the problem. In regard to the mediators’ statement, referenced above, that the adolescents are sometimes the most healthy ones in the mediation room, there is a psychological term for a child who is more mature than and takes care of his parents – it is called a parentified child. The parentified child often grows up with a host of psychological and relationship problems because he was forced to ignore his own basic needs as a child. To rely on the adolescent to “keep the mediation sane” is to perpetuate the psychological burden that the parents have placed on this youth.

In the final analysis, children are not empowered merely by being given rights and an opportunity to express themselves in proceedings which affect them. They are empowered by a thorough understanding of their needs and a commitment to address those needs. They need stability, discipline, love and support so much more than their “day in court,” and it is only when their real needs are addressed that they can grow into responsible, compassionate and well-adjusted adults.


Michael Milgraum, Esq., Ph.D., is an attorney and psychologist. He works as a guardian ad litem, mediator, psychotherapist and psychological evaluator, with offices in Silver Spring and Annapolis.
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Publications : Bar Bulletin: February, 2005

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