The Unreliability of Children’s Wishes in High-Conflict Custody Disputes
When parents separate, some can amicably arrange for their children to maintain relationships with both parents. However, many struggle to reach agreements, leading to contested court proceedings. Some engage in high-conflict disputes over child contact and residence. These cases consume significant time and emotional resources from courts, judges, and professionals involved in family law.
One of the key concerns in these disputes is the routine practice of seeking to establish the wishes and feelings of the children involved. While this approach is intended to give children a voice in decisions affecting them, it may, in fact, cause them harm and prove unreliable.
Public vs. Private Law Cases
High-conflict private law cases differ greatly from public law cases, such as care proceedings. In care cases, children often come from backgrounds of serious disadvantage, including abuse or neglect. By contrast, parents in private family law disputes are often employed, socially successful, and free from major external disadvantages. Yet, despite these differences, serious allegations of abuse or incompetence are made in two-thirds of high-conflict custody cases, further complicating the process.
Many professionals and statutory agencies may not have fully accounted for the unique demands of private family law cases. Many professionals now handling these cases have backgrounds in child protection but lack experience in high-conflict custody disputes. The emotional intensity of these cases can escalate quickly, impacting both the children and the professionals assessing them.
Why Children’s Stated Wishes Are Unreliable
The study highlighted that children who initially resisted contact with a non-resident parent often enjoyed it when given the opportunity. Of 58 children observed, 34 had a positive or reasonable visit despite prior resistance. Younger children, in particular, were more likely to reconnect with the non-resident parent when visits were insisted upon.
Several factors influence a child’s expressed reluctance to see a parent:
1. Age
- Younger children (under five) had a 100% success rate in resuming relationships with the non-resident parent.
- Children aged five to seven had an 80% success rate.
- Beyond age eight, the outcome was unpredictable.
2. Resident Family Influences
- Many children in high-conflict cases live in households where hostility toward the non-resident parent is openly expressed.
- Extended family and new partners often reinforce this hostility.
- Some children fear backlash from siblings or other family members if they show affection toward the non-resident parent.
3. Non-Resident Parent Influences
- Despite serious allegations against non-resident parents, only one out of 39 observed parents showed an inability to connect with their child.
- Long observation periods helped children adjust, revealing that initial resistance was often temporary.
4. Internal Psychological Conflicts
- Children experience conflicts of loyalty between their parents, leading to feelings of guilt.
- To resolve this, they may align with one parent by rejecting the other, exaggerating negative experiences, or making false allegations.
- Many children displaying signs of “parental alienation”—persistent negative beliefs about a parent that are disproportionate to their actual experiences—later may reconnect with the non-resident parent when given the chance.
The Role of Courts and Professionals
Research suggests that when courts take an active role in ensuring contact with both parents, children often overcome their initial resistance. In some cases, transferring residence to the previously rejected parent has been the most effective way to resolve alienation.
Therapy alone has proven ineffective in resolving these cases unless combined with enforced contact. Delays caused by extended therapy sessions may worsen the situation rather than help.
The Need for Change
The study calls into question the current practice of prioritising children’s stated wishes in high-conflict cases. These wishes are often shaped by external pressures rather than genuine feelings. Children in these cases face an impossible dilemma: to be honest about their feelings or remain loyal to one parent. Unscrupulous parents and/or professionals can manipulate this process, using the child’s expressed reluctance as a means to block contact with the other parent.
Instead of relying on children’s wishes alone, courts and professionals should consider a broader context, including family influences and psychological dynamics. Structured, enforced contact visits may provide the best opportunity for children to maintain relationships with both parents, ultimately benefiting their long-term well-being.
Conclusion
The well-intended effort to hear children’s voices in high-conflict custody disputes may actually harm them. Courts must recognise the external pressures affecting children’s stated wishes and take decisive action to ensure that both parents remain involved in their lives. By prioritising structured assessments and enforcing appropriate contact, the legal system can better serve children caught in the crossfire of parental conflict.
Reference:
Weir, K (2011) Hign conflict contact disputes: Evidence of the extreme unreliability of some children’s ascertainable wishes and feelings, Family Court Review, 49 (4), 788-800. DOI:10.1111/j.1744-1617.2011.01414.x