By: Bari Z. Weinberger, Esq.
Weinberger Divorce & Family Law Group, LLC

Whether you represent the father or the mother in a custody dispute, every attorney has an obligation, professionally, ethically, and morally, to make certain that the children involved in a case are protected. Some practitioners find it difficult to protect the child’s interest, while at the same time being expected to properly advocate on behalf of one parent in the custody matter. After all, to zealously represent a parent may entail necessary action which could subject the child to psychological evaluations, interviews by the judge, and other litigation-related participation. This role that we sometimes force children to play in a custody matter can cause those children life-long scars.

For instance, no matter how many times a judge, with good intentions, may advise a child that he/she is not responsible for the decision being made by the judge, the true psychological repercussions are unpredictable. While some children may feel responsible for their parents’ divorce, others may believe that they are disappointing their parent(s) when they meet with the judge to express their feelings and preferences. It is not uncommon for children to harbor resentment against their parents for placing them in the uncomfortable position of having to speak to the court. This could, and often does, contaminate the parent-child relationship.

All participants in a custody action, whether it be the parties, the attorneys, or the judge, should always remember that children are quite impressionable. They often sense when their parents’ marriage is deteriorating around them and typically feel caught in the middle. Some are frightened and withdrawn, while others are angry and destructive. There is no doubt that each individual child will respond to a custody dispute with varying reactions. Most parents, no matter how much they love their child, truly do not realize the actual capacity to which their child is affected.

One thing is certain, however, if you want parents to settle their custody dispute, showing them a picture drawn by their child of a man choking a woman and a child screaming below “daddy, please don’t kill mommy!” might just do the trick. Showing parents a picture that their child drew of a knife next to a stick-figure-child with words to the effect of “I wish I was dead” will leave a guaranteed biting impression. Those chilling illustrations were actually drawn by children who have, in the very recent past, been involved in custody-related litigation.

These children, and hundreds of others, have participated in a program known as Kids Count, which was developed in 1997 by Judge Joseph P. Testa of the Cumberland County Family Division and Custody/Visitation Mediator Pamela R. Homan. Kids Count invites children involved in custody disputes into the courtroom atmosphere to introduce them to the process, so that those children, who may have a negative visual image of the court and the judge, can have a front-row seat to a more comfortable reality.

I first observed the program when the Honorable Michael K. Diamond, Presiding Judge of the Family Part of the Passaic County Superior Court in New Jersey, exited his chambers into a courtroom full of people, about a third of whom were children between the ages of 7 and 15. Judge Diamond welcomed everyone into his courtroom and spent a few minutes introducing his court clerk, law clerk, sheriff’s officer, and a mediator and psychologist, who were all assisting him in the after-hours, purely volunteer-based program.

Within moments, Judge Diamond offered to have all of the children come up to his bench and bang his gavel. Reluctant and probably a little bit intimidated, most of the children remained seated next to the parent or parents who brought them. Judge Diamond sensed the children’s apprehension due to the formal surroundings, so he removed his robe to offer a more casual environment. The mediator and psychologist thereafter escorted the children to another room, where they were separated into groups by age similarities. Once the children left the courtroom, Judge Diamond spoke candidly with the parents. “All of you who think you know what your child is feeling and how your divorce is affecting them are in for a rude awakening.”

The program, which is partially intended to familiarize children with divorce and the court system, can help alleviate these children’s fears and elicit emotional breakthroughs and peer-to-peer discussions. Before coming to court on this particular occasion, the children may have had a distinct mental picture of the judge and the courtroom. However, once these children completed the Kids Count program, they were, by the whole, better able to positively relate to the process.

The children spent about one hour drawing pictures of what divorce meant to them, writing letters to their parents respecting the divorce and how it made them feel, and interacted with other children in their group. Kids Count also provided the children an outlet to express their feelings with a trained mediator or psychologist. Some children remained quiet and disassociated during the program, while others utilized the time to talk to different children their age who were going through similar traumas or experiences. While the children were engaged outside of the courtroom, Judge Diamond remained to answer custody-related questions posed by the parents. This question-and-answer session provided the parents with a unique opportunity to clarify any confusion they may have had about custody-related issues. Most importantly, however, Judge Diamond educated the parents on the serious impact that the custody process has on their children.

Judge Diamond asked of the parents a very intriguing rhetorical question:

Aren’t you better off deciding the future of your children rather than leaving it up to a stranger who knows nothing about either of you except for what you testified to in the courtroom? What I do as Judge will not make either of you happy. If the two of you resolve the dispute, you can at least give yourself the satisfaction of knowing that you decided the future of your children rather than leaving it up to a total stranger.

His words silenced the courtroom probably because it hit home. It appeared as though these parents suddenly experienced an awaking of sorts. Perhaps they understood the Judge’s message and realized that they could control their own destiny by resolving their case, instead of placing intimate decisions regarding their children in the hands of someone who knows little about their life and family. Wouldn’t these parents be better off working together to decide what is in their own children’s best interests? Judge Diamond gave these parents a moment to think about what he said, while the children wrapped up their session.

Once the children finished their packets and discussions with their peers and the professionals, they rejoined their parents back in the courtroom with the Judge and his staff. The children were offered a rare chance to ask questions directly of the Judge. Then, one last time, before handing out a small gift to the children (including a much needed stress ball), Judge Diamond invited the children back to his bench to bang his gavel. Without fail, virtually every child, having already released the tension of what to expect, and having taken advantage of this outlet to express themselves, raced to the bench laughing and smiling, to bang the gavel and scream “Order in the Court”. In such a short period of time, almost all of the children appeared to have been liberated of their fear and uncertainty.

The children’s written products, pictures, letters, and such, were reviewed after the parents departed with their children. What was put on paper though was very distressing; something that parents would never expect. The Judge promised these parents earlier that they were in for a rude awakening and he could not have put it any more accurately. Children drew alarming pictures of domestic violence, two parents playing tug-of-war with the child’s body, faces with enormous teardrops streaming from the eyes and broken hearts. Adjectives were selected such as unhappy, depressed and confused.

Children wrote shocking letters to their parents, such as one little girl who wrote “Mommy, I hate when you drink too much and can’t take care of me.” A young teenage boy wrote “Daddy, please stop calling mommy names and hitting her.” Many children wrote “I want you to get back together”, “I’m scared”, “where will we live”, “stop fighting”, “I’m sorry I was bad”, and “I wish this was over.” In reviewing their child’s work-product, parents are confronted with the frightening reality of what their child picks up and how it harms them. One page of the children’s packet asked them to complete a sentence, “What if…” The following are some actual quotes from children participating in the program:

  1. What if I can’t leave my class and I want to cry?
  2. What if I find out my parents have been lying to me about almost everything?
  3. What if I don’t get to see any of my parents on my birthday?
  4. What if my dad takes me out after he hit my head against a wall?
  5. What if my dad takes my mom again and chokes her again?
  6. What if my birthday comes and both my parents forget?
  7. What if I come home from school and no one is home?
  8. What if my mom doesn’t have enough money to send me to dancing class and I will never get my dream to get a job on Broadway?

One teenage girl, who will remain unnamed, wrote the following shocking letter to her father:

“Dear Dad, I do not want to see you after the divorce is final. You were never there for me and I am certainly not going to be there for you. I will also never forgive you for leaving us without any money and never sending any to us. We can hardly afford food. If you really love us why did you leave us like this?”

The genuine responses elicited from these children are the very reason that not one of the custody cases involving any of the more than 300 children who have participated in the Kids Count program in Passaic County, New Jersey has gone to trial. Parents are forced to take a long, hard look at their children and the impact that their custody-related disputes are having upon them. By witnessing first hand what their children are experiencing, parents are expected to focus more on their child’s feelings and how the custody dispute potentially harms their child, and less on their own needs. It is anticipated that this will, in turn, cause the parents to work toward a reasonable resolution to their contested child related issues. The program’s objective of assisting children through the custody process is legitimized by the obvious results it has generated, and the children of these settled cases have been less likely to experience continued conflict as a result of participating in the program.

The success of the program is further confirmed two weeks following the program, when parents are asked to fill out evaluations. While there are numerous examples of extremely satisfied participants, one parent in particular recently wrote that she discovered feelings that her son had previously bottled up. For months, she had been unable to get him to communicate or otherwise express any emotions. He seemed removed from everything, keeping to himself and appearing depressed. She shared that for the first time, her son began to cry in the car on the way home from the Kids Count program. She was relieved that he finally might be ready to open up with her.

That evening, this mother spoke with her son for hours about the pending divorce, how he was feeling and why he felt responsible for the divorce. This breakthrough not only brought the two of them closer together because she was able to reassure him otherwise, but it also opened her eyes as to how the custody dispute was truly impacting her son on a daily basis and the damage it was creating. The Kids Count program enabled this parent to finally communicate effectively with her son and, indeed, their custody case never went to trial.

The Kids Count program is a remarkable tool that has honorably served families and children in particular, to extraordinary degrees. Those professionals and other persons involved with Kids Count should be proud to be affiliated with such a selfless, volunteer program. The resulting positive effects upon children involved in custody cases have proven absolute and are truly astonishing, especially considering how common hotly contested custody disputes have become. Still, despite the innumerable benefits that Kids Count has produced for children in certain limited areas of New Jersey, the one obvious unfortunate downfall that continues to exist is the fact that Kids Count has yet to be deemed a mandatory program nationwide.

To Contact Bari Zell Weinberger: