The Child's Attorney and the Alienated Child: Approaches to Resolving the Ethical Dilemma of Diminished Capacity

Increasingly lawyers for children follow a model of “client centered” (as opposed to “best interests”) representation in child custody disputes in which the child client defines the objectives of the representation. The client‐centered model, while appropriate in most cases to give voice to the child's preferences in a process that deeply impacts him or her, can create an ethical dilemma for the child's lawyer in cases where a child is truly alienated from the other parent by the actions of the alienating parent. Alienated children strongly and unreasonably express a preference for objectives of representation that might further damage the alienated parent's relationship with the child. The alienated child's objectives may be the result of a campaign of denigration and “brainwashing” by the alienating parent. This Note suggests that when a child is truly alienated from a parent, as diagnosed by a mental health expert, the child may have “diminished capacity” and therefore, the client‐directed model of representation is not adequate. This Note proposes that the Child's Attorney must determine whether the child is of diminished capacity under the Model Rules of Professional Conduct and, if so, must treat the client accordingly under Rule 1.14. Specifically, the attorney may, if all other remedial measures are inadequate, override the child's wishes and advocate a position that the child would take, but for the brainwashing of the child used to alienate him or her from a parent.     

Young Children Exposed to Intimate Partner Violence Describe their Abused Parent: A Qualitative Study

The negative impact of intimate partner violence (IPV) begins early in the child’s relationship with a caregiver. Children’s relationships with, and internal working models of, abused parents have rarely been documented. The aim of this study was to collect and interpret young children’s accounts of their abused parent. Interviews were conducted with 17 children aged 4 to 12 years who had witnessed IPV. Thematic analysis identified three main themes and seven sub-themes: “Coherent accounts of the parent” (sub-themes of “general benevolence”, “provision of support, protection, and nurture”, and “parental distress”); “Deficient accounts of the parent” (“vague accounts” and “disorganized narrations”); and “The parent as a trauma trigger” (“avoidance” and “breakthrough of intrusive memories and thoughts”). The results indicate these children may hold integrated, deficient, or blocked internal representations of an abused parent, and they illustrate the benefit of including young children as informants in research.     

STRICTLY LIABLE: GOVERNMENTAL USE OF THE PARENT–CHILD RELATIONSHIP AS A BASIS FOR HOLDING VICTIMS LIABLE FOR THEIR CHILD'S WITNESS TO DOMESTIC VIOLENCE

Studies estimate that between three and ten million children in the United States witness domestic violence annually. Although studies have demonstrated a co‐occurrence of domestic violence and child abuse, there is no concrete evidence to support the assumption that a child's exposure to domestic violence increases the risk to the child of abuse or neglect. Recently the New York State Court of Appeals determined that a child's witness to abuse does not suffice, in and of itself, to show that removal of the child is necessary or that removal is in the “best interests” of the child. Programs which have developed alternatives to presumptive removal understand the importance of viewing the interests of the battered parent and children as being in accord with each other rather than in opposition. Private and government sponsored programs have demonstrated some success in protecting the parent‐child relationship, ensuring the safety of both parent and child, and increasing accountability of batterers while reducing the necessity for removals. Alternative programs are less costly to the state than foster care, and emotionally less costly to the families.     

CHILD SUPPORT GUIDELINES:

Since 1984, all U.S. jurisdictions have established child support guidelines. Using computerized worksheets, we compared the guidelines of New York, New Jersey, and Connecticut (which use the “Income Shares” model also employed by 30 other jurisdictions). We calculated how child care, alimony to a prior spouse, and subsequent children change the support obligation. We found that, generally, Connecticut requires the most child support, New York is second, and New Jersey third. However, if children require child care, New York requires the most support. In Connecticut, child care costs have virtually no impact. When a noncustodial parent is paying alimony to a prior spouse, support is dramatically greater in Connecticut than in New Jersey, with New York in between. Only New Jersey reduces the support paid by the noncustodial parent who has subsequent children. New York's and Connecticut's mathematical guidelines do not consider subsequent children.     

New York State of Mind: Parental Incarceration and Children's Visitation in New York State

The incarceration of a parent has a variety of negative effects on a child's psychological, academic, and developmental success. Children can end up in foster care as a result of the state terminating parental rights due to the parent's incarceration. Despite imprisonment of their parent(s), maintenance of visitation with the parent(s) is still important for their children. However, not all prisons have visitation programs that are suitable to visiting children. This Note proposes a model state statute that will recognize the importance of visitation, implement “child friendly” visitation programs, facilitate training for prison staff, and provide transportation for children in major cities to the prison facilities.     

The effect of social status on women's age at first childbirth in the late seventeenth- to early eighteenth-century Korea

While records on historical population are available and do exist, the fact that they are so limited in nature is a critical problem. We applied the method of family reconstitution to a Korean household register to deal with these limitations. Based on family reconstitution from five successive registers, we calculated women's age at first childbirth for each social status in two ways: “observed woman's age” at first childbirth = woman's current age–age of her first child, and “estimated woman's age” at first childbirth, which uses linear regression analysis on the basis of positive association between women's age and the age of their firstborn. Our results shed light on the effects of social status and cultural factors on the age at which women in pre-industrial Korea bore their first child.     

The effect of social status on women's age at first childbirth in the late seventeenth- to early eighteenth-century Korea

While records on historical population are available and do exist, the fact that they are so limited in nature is a critical problem. We applied the method of family reconstitution to a Korean household register to deal with these limitations. Based on family reconstitution from five successive registers, we calculated women's age at first childbirth for each social status in two ways: “observed woman's age” at first childbirth = woman's current age–age of her first child, and “estimated woman's age” at first childbirth, which uses linear regression analysis on the basis of positive association between women's age and the age of their firstborn. Our results shed light on the effects of social status and cultural factors on the age at which women in pre-industrial Korea bore their first child.     

HIGH‐CONFLICT CONTACT DISPUTES: EVIDENCE OF THE EXTREME UNRELIABILITY OF SOME CHILDREN'S ASCERTAINABLE WISHES AND FEELINGS

This article challenges an increasing orthodoxy regarding the weight which courts might place upon the expressed views of children in a specific situation—high‐conflict contact disputes. I am a child psychiatrist who acts as an expert witness within the family courts of England & Wales. I have conducted a statistical analysis of cases in which I have conducted assessments of children caught in such disputes between their separated parents. Fifty‐eight children met the criteria for inclusion in the study—the child's consistent opposition to contact with the non resident parent (NRP), despite the court having determined that there was no good reason to constrain contact. My assessment routinely included attempted observation of the child at a visit with the NRP. Despite their stated views most children had a positive experience in those visits that took place, and despite the fact that most had not seen the NRP for a long time. Overall there was a statistical association between increased resistance to contact and the greater age of the child and the longer the time during which no contact had occurred. However, the responses of children and young people were unpredictable and it was impossible to conclude that apparent maturity or intelligence was a guide to the reliability of their expressed resistance. The possible reasons for this unreliability are discussed. I emphasize that my sample of children is unusual as many of the cases had involved serious, though unfounded, allegations of abuse. In addition most of the children showed indications of having become “alienated” from the NRP. I conclude that courts might exercise caution when evaluating the views of children and young people in this situation, and emphasises that assessors should consider including at least one observation of the child at a prolonged visit to the NRP. Because of the new orthodoxy some parents may be tempted to misuse their child's right to a “voice” in court in order to achieve their own ends. Practitioners who advise courts may need to be more aware of these difficulties.     

Creating the Reasonable Child: Risk,Responsibility, and the Attractive Nuisance Doctrine

In common law, trespassers could not sue for injuries. In the early 1870s, however, courts exempted child trespassers injured by industrial machinery from this rule. The development of the hotly contested “attractive nuisance” doctrine illustrates turn‐of‐the‐twentieth‐century debates about how to allocate the risk of injury from industrial accidents, which linked responsibility to the capacity to understand danger and to exert self‐control. Although at first courts in attractive nuisance cases perceived children as innocent, irrational “butterflies,” they gradually reconceived child plaintiffs to be rational, risk‐bearing individuals, a change reflected and accelerated by the Safety First campaign launched by railroad corporations. This reframing of children's ability to bear risk created the standard of the “reasonable child,” which transferred responsibility for industrial accidents to children themselves. Although by the 1930s the attractive nuisance doctrine had been widely accepted, in practice the “reasonable child” standard posed a difficult hurdle for child plaintiffs to overcome.     

International Hague Network of Judges: Significance in Implementation of the 1980 and 1996 Hague Conventions on the Civil Aspects of International Child Abduction

The 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”) provides for the prompt return to the country of habitual residence of children taken by a parent from one country to another. It was created to address the threshold problem in such cases, that is, which court should determine the rights of the parties involved. In a case under the Convention, the court's concern is which country is the country of habitual residence and practical aspects of the return to ensure the safety of the child and the taking parent. This article will discuss the formation of the International Hague Network of Judges (IHNJ), why it is crucial in the advancement of the Convention's goals, and, specifically, what it does to educate judges and facilitate communication between judges, and how the IHNJ can facilitate the return, including providing information on services, procedures, and protections offered in the countries of return.     

Associations between Parent and Child Reports Of Interparental Conflict/Violence And Child Difficulties in A Family Mediation Setting*

We examined the association between parents’ (N = 52 mothers and 52 fathers) and children's (N = 27) reports of interparental conflict and child difficulties in a family mediation setting. Parents’ reports of conflict were moderately associated with children's reports of exposure to parental conflict, but only fathers’ reports of conflict were associated with children's reports of negative responses to parent conflict. While mothers and fathers agreed on their child's difficulties, only mothers’, not fathers’, report of child difficulties were moderately related to child reports of child difficulties. Mothers’ and fathers’ reports of conflict generally were not strongly associated with reports of child difficulties. In contrast to parent reports, children's reports of exposure to parents’ conflict were moderately and significantly related to self‐reported child difficulties and moderately related to parents’ reports of child academic difficulties. The magnitude of the association between the child's report of interparental conflict and self‐report of difficulties was stronger than the association between parent report of conflict and parent report of child difficulties, suggesting that parents may not fully understand their child's exposure to parent conflict/violence or the problems their child is experiencing.

Key Points for the Family Court Community:
• Family law stakeholders prioritize the creation of parenting arrangements that are in the best interest of the child; however, it is unclear how to gather information about the child and the child's perspective in order to inform such arrangements.
• The study results suggest that parents may not agree with each other or with the child about important family issues, such as parent conflict and child difficulties. For example, parents may not fully understand their child's exposure to parental conflict/violence when in the midst of custody negotiations.
• More research is needed to determine the best method for gathering information about the child during custody proceedings. In the meantime, it is important to gather information from multiple sources and to consider the agreement and differences across such sources of information.

     

Cognitive‐Behavioral Methods in High‐Conflict Divorce: Systematic Desensitization Adapted to Parent–Child Reunification Interventions

Children who are triangulated into their parents' conflicts can become polarized, aligning with one parent and rejecting the other. In response, courts often order families to engage mental health professionals to provide reunification interventions. This article adapts empirically established systematic desensitization and flooding procedures most commonly used to treat phobic children as possible components of a larger family systems invention designed to help the polarized child develop a healthy relationship with both parents. Strengths and weaknesses of these procedures are discussed and illustrated with case material.

Key Points for the Family Court Community
• Family law and psychology agree that children should have the opportunity to enjoy a healthy relationship with both parents
• Adult conflict can polarize a child's relationships, including rejection of one parent
• Existing clinical and forensic “reunification” strategies often prove inadequate
• Reliable and valid cognitive behavioral methods can be adopted to facilitate this process
• A cognitive‐behavioral “exposure‐based” reunification protocol is discussed

     

Court Procedures

It has been said that “the court is the second trauma.” It might be better to say the system, rather than the court. The President's Task Force (page 51) recommends a federal study “to evaluate the juvenile justice system from the perspective of the victim.” The system may interview the child time and again, each time making her relive the experience, keeping the wound open. It may force her down to court waiting rooms where she sits uncomfortably without even the accoutrements of a dentist's office for hours and then often to be told that the case was continued and to come back next week. She may be put on a witness stand, in a big formal room, with what seems like a thousand eyes staring at her, and a bailiff in full uniform ready to lock her up, and a judge in a black robe towering above her. She may find that the newspapers and television are full of her name and pictures and stories about what happened to her which they obtained from the official records. And this may make her the focus of her classmates with all the brutal teasing that can involve. The system may also suddenly arrest her father and just as suddenly release him. It may plea bargain away her future hope of rehabilitation without even talking to her, in the name of speedy justice. The system is always more concerned with the well-being of the criminals than of the victims. When children are the victims, surely change can be made. Recommended by the President's Task Force (page 73), a starting point is to require “that judges at both the trial and appellate level(s) participate in a training program addressing the needs and legal interests of crime victims.”     

Protecting the Internet with international law

The Internet remains the odd child of international law. While forever more universal law venues such as conferences, edited volumes or research projects consider “the Internet” a peculiar, interesting aspect of its well-recognized disciplines, international scholarship fails to address the global network as a whole, stalling the application of the fully developed and well-suited international law apparatus to the global community's biggest contemporary challenge. “Internet governance” is still perceived by legal scholars as construed to international relations and, at best, a potential ground for soft law in a distant future. That is not the case: Internet governance, with all its challenges, has been shaping international law for almost two decades. The latest unveilings of the ways in which the Internet impacts global policies and laws caught the public eye with the 2018 Cambridge Analytica scandal and, previously, with the 2013 Snowden revelations, yet as surprising as they might have been to the average user, they are direct results of network's architecture and its governance model. This paper looks at the evolving concept of “Internet's public core” as an opportunity to bridge this dogmatic gap. We identify the scope and meaning of “Internet's core” and assess its legitimacy within existing international normative frameworks. We argue that the technical components crucial to the flawless operation of the global network, such as the Domain Name System and Internet's backbone networks, can be effectively protected with international law.     

Child witness statement quality

Use of general questions in child witness interviews often limits the completeness of young children's recall. In this study experienced professionals interviewed 5–6 year olds and 8–9 year olds “as they would normally” about live events witnessed by the children. Interviewers' spontaneous use of general and specific questions was assessed, as were the effects of these question types on the children's recall. A main result was that the younger children would frequently fail to answer general questions but would then provide information relevant to these same questions later in the interview. Use of specific questions in these relatively naturalistic interviews did not necessarily improve the overall completeness of younger children's recall, contrary to some previous findings, although, in line with previous findings, such questioning reduced overall accuracy rates. These results highlighted the scale of the problem of “omission errors” in young children's recall. Implications for the use of general questions by professionals who interview child witnesses are discussed.     

PARENT EDUCATION PROGRAMS IN FAMILY COURTS: BALANCING AUTONOMY AND STATE INTERVENTION

This work considers how court‐connected parent education programs can assist parents to access dispute resolution processes that best suit their families’ needs, in a manner involving appropriately curtailed levels of state interference with parental autonomy. After reviewing traditionally accepted limits on state interference with family functioning, the increased concern for children's emotional well‐being, and data relating to one parent education program, the author concludes that providing mandatory “basic level” informational programs to all separating parents seeking access to the family law regime is a warranted level of state intervention. “Skills‐building” programs aimed at achieving demonstrably changed parental practices should be available on a voluntary attendance basis.     

Maternal Filicide in Turkey

Filicide occurs in every socioeconomic stratum around the world. This study was conducted to evaluate motives, psychopathological aspects, and socio-demographic factors of 74 filicide cases of women in Turkey. Mean age of mothers, most of whom committed infanticide, was 26 years, and breakdown of criminal offenses are as follows: “to get rid of unwanted babies” (24.3%), “acute psychotic-type filicide” (21.6%), “fatal child abuse and neglect” (17.6%), “to get revenge” (12.2%), “protect the lonely child from the harm and badness after suicide” (10.8%), and “pity” (9.5%) motives. Results showed that maternal filicide cannot be reduced to only mental instability or environmental factors and indicates deficiencies in the capacity of the mothers' role in connecting with their child and with parenting skills. Finally, with regard to defendants' motives, similar factors that contribute to committing maternal filicide should be considered while making an assessment of the data and determining employee risk groups.     

Sovereignty and International Order

Abstract. Sovereignty may be threatened by obligations and relations with other nations, states or powers from either an “internal” or “external” perspective. In this paper, I argue that these obligations and relationships may be compatible with a state's sovereignty if we understand the proper nature of authoritative relationships. This requires a model of “rational authority” which places emphasis on the first-person perspective of the subjects to authority.     

An examination of implicit theories among francophone child molesters

Abstract

According to Ward (2000), cognitive distortions emerge from “implicit theories” (ITs). Ward and Keenan (1999) established a typology of the ITs of child molesters in which they classified existing knowledge on their cognitive distortions into five categories: “entitlement”, “nature of harm”, “uncontrollability”, “child as sexual being” and “dangerous world”. The purpose of this research was to examine whether the cognitive distortions of child molesters are encapsulated fully by these five categories of ITs. Semi-structured interviews were conducted with 20 convicted francophone child molesters and their cognitive distortions were analysed. Results indicate that six ITs were present in this sample. “Entitlement”, “nature of harm” and “uncontrollability” were identical to those of Ward and Keenan. “Child as sexual being” and “dangerous world” were present, but varied from their original versions. A new IT emerged, which we called “child as partner”. We discuss these findings in comparison to their original versions.