The controversy over children’s involvement in the family dispute resolution process arises, at least in part, as a result of the differing perspectives, values, and assumptions of the professionals involved in the family justice process. The disagreements are more within professional groups, including judges, lawyers, and psychologists, rather than between professional groups, with members of each profession being advocates for and against judicial interviewing. Some take the view that children have rights and should be allowed to express their views about their future, even in the context of parental disputes. Others, however, believe that children need to be protected from family conflict and not directly involved in the process. See Robert E. Emery, Children’s Voices: Listening–and Deciding–Is an Adult Responsibility, 45 Ariz. L. Rev. 621 (2003); Richard A. Warshak, Payoffs and Pitfalls of Listening to Children, 52 Fam. Rel. 373 (2003).
Arguments against children becoming involved in the process in any way include concerns that children lack the ability to assimilate relevant information about the family justice process and may not understand what they are being asked. There are other particular concerns about judicial interviews. For example, children may be manipulated by parents into providing inaccurate information. Another concern is that children may experience guilt, pressure, or retribution from parents, either before or after a meeting with a judge. If judges are not adequately trained in interviewing children, they may not reliably explore children’s views or feelings. Some suggest that as a result of pressure from parents or poor judicial interview techniques, children may be ““traumatized” by the experience. These concerns may be heightened to the extent that judges hearing family law cases are not always specialist family law judges.
Lawyers and judges also express concern that allowing a judge to interview a child, especially in the absence of parents or their counsel, derogates from the traditional judicial role and may violate the rights of parents. Some children are ambivalent or change their views depending on how and when they are interviewed. So there are also concerns about a process in which any professional, including a judge, may try to determine a child’s views and preferences based on a single meeting.