THE FERVID national debate over who speaks for Elian Gonzalez resonates uncomfortably with those judges and lawyers routinely involved in less celebrated family custody cases.
We, thankfully, rarely make our decisions on custody or guardianship in the white-hot glare of the media spotlight now playing on every aspect of Elian's case. Still, gut-wrenching custody decisions that greatly alter people's lives are made every day in Maryland courtrooms.
These cases share with Elian's the problems of assessing whether and how to factor in the wishes of children in custody, guardianship and visitation cases. Such cases are filled with land mines. The contesting parties, usually a mother and a father, are often engaged in the most contentious issues -- sometimes infidelity, sometimes domestic violence, often a long history of anger and savage recriminations.
The deteriorating relationship is frequently exacerbated by a disastrous financial situation. In this cauldron of seething emotions, the judge must determine where a young child will reside and who will be the primary caretaker. The angry parents and their contentious lawyers often tell the judge, "Ask the child. Let her tell you where she wants to live." In such situations, the judge must decide what to do.
My first principle is one used by the medical profession: "First, do no harm." I don't want the litigation process to be an instrument of hurt to the child, and find it a particular professional failing if my actions cause injury to the child.
Unfortunately, but perhaps unavoidably, Maryland law does not provide precise rubrics on how or when to factor in the wishes of a child. The appellate decisions tell us we should consider the preference of a child, but only where the child has reached an age where "he may rationally express a preference." In one case, a boy of seven was found not to have that capability. But, in another, the court thought that a child of five could provide useful information.
I have had cases in which parents and lawyers ask me to ascertain the preferences of children as young as two years old. There often seems to be a loss of perspective in such requests. People who wouldn't let their young children make an unfettered choice on the clothes they buy suddenly believe that a child can provide wisdom on the Hobson's choice between contending parents.
Putting young children in such dilemmas undoubtedly can be harmful to them. The child can end up feeling he or she is responsible for the result because everyone is focused on his or her "decision." The guilt and responsibility this entails can be a heavy weight on a child. Children placed in this position often feel they have failed one or both of their parents.
Even where the child is not guilt-ridden or made fearful by the role thrust upon him or her, the child may absorb the unhealthy message that he or she now can dictate the result. And the parents sometimes buy into this fiction and relinquish normal parental discipline over the child so that the child maintains a favorable view of the parent.
If we were inventing a new way for child custody matters to be resolved for families, an adversarial litigation system would not be what any of us would choose. It divides parties into "winners" and "losers." It forces human problems into unnatural extremes for optimum trial presentation, and little premium is placed on long-term outcomes for a family that will go on even after we mark the court case closed.
Progress is being made. Most courts now vigorously encourage mediation of child custody disputes. Courts often insulate children from the grossest excesses by appointing guardians or attorneys experienced in representing children. Courts are also requiring warring parents to take classes on parenting after divorce, such as the excellent ones offered by the Center for Children of Separation and Divorce in Columbia.
Finally, judges are being trained on how to handle the child's situation and methods to cope with difficult custody disputes, including developing information about the children without subjecting them to the rigors of the courtroom.
I have a standard talk I give at the point when custody cases are getting nasty. I explain that we -- the parents, the lawyers and I -- are the adults. It is our special responsibility by virtue of being the grown-ups to put aside our anger, our frustrations and even our legitimate needs to find a solution for the child. Children should be free to be children unburdened by adult decisions, and we should be responsible and caring enough as adults to find the solutions for the children. Obviously, the adults around Elian failed in this pursuit.
Hopefully, we in the Maryland court system can do a better job.
Dennis M. Sweeney is an associate judge for the Circuit Court for Howard County.