“I wonder if the judges took into account the incredible stress that children face in having to go to court and face judges,” said Charis Wong, who is the Director of Kin & Kids Marriage, Family and Child Therapy Centre.

Wong, a former litigation lawyer, stressed that the psychological well-being of the children would be the most important factor to consider at the end of a marriage.

“Children going through a divorce already have to go through the trauma of having their most important security – their family – break up. They shouldn’t have to go to court,” she told FMT.

“When I sit in the High Court and see children waiting to enter the judges’ chambers, I cannot help but notice the tension between the parents, and how their children are being pulled into this tension. It’s disheartening.”

She argued that the children should not have to face a judge and be put under the “unnecessary stress and pressure of having to be subjected to too much interrogation.”

“They shouldn’t be made to answer questions asked by a judge, what more a panel of five judges,” she said.

“The number of interviewers, the nature and quality of interview questions posed to the child, and the position of authority of the interviewers in relation to the child are all factors that research have shown to influence the oral testimony of children, especially young children.”

She noted that it would be at this point that forensic custody reports for evaluation would come in to assist the court.

“If the court is able to obtain adequate psychological information about the children and families from a comprehensive child custody evaluation, the children will be spared the distress of having to be interviewed or offer testimony in court,” she said.

“Working with court-referred divorce cases, I tell both the parents and children upfront that one of my goals is to help the family make important decisions together about the children’s living arrangements so that they can all stop going to court to see the judge.”

Wong explained that determining a child’s parent of choice was rarely a simple question-and-answer interview process, and that her role as a court-appointed psychologist was to make careful assessments that would involve several methods.

“I use multiple methods of assessments to carefully assess the child’s parent of choice, including parent-child observations, family observations, structured and unstructured play assessments, instruments designed specifically to help identify issues related to custody and access, parent interviews, and collateral contact interviews” she said.

“In fact, I strive to conduct such an evaluation in a careful and sensitive manner that minimizes the risk of increasing the child’s emotional distress”

Doing so, she said, required avoiding directly asking the child about whom he would like to live with, as this would heighten his anxiety and continue to put him in the middle of the parental dispute.

“Instead of putting the child on the spot, I would provide an opportunity for a child to express his feelings and wishes about the custody outcome, but only if he has such wishes,” she said.

“From my experience working with children in custody and access disputes, some children are quite ready to share how and why they would like to spend time with each parent.

“Others, however, really do feel caught in the middle, and hence avoid sharing their ambivalent feelings and are reluctant to take a stand as to which parent they want to spend more time or live with.”

Custody guidelines

Wong also noted that the child’s parent of choice may not be the sole determining factor in deciding what is in the best interest of the child. She questioned whether the Federal Court in the Deepa-Izwan case had explained what they understood to be the “best interest of the child.”

Wong explained that according to the custody guidelines prepared by the American Psychological Association, “the primary consideration in a child custody evaluation is to assess the individual and family factors that affect the best psychological interests of the child.”

Deciding on custody is a specific question that has to be answered in the midst of complex family issues, she said. “So, did the Federal Court give sufficient consideration to the family factors in determining what was in the best interest of Deepa’s son?”

She said the American state of Michigan had a “very comprehensive statute on child custody,” listing 12 factors in its definition of a child’s best interest.

“The reasonable preference of a child is only one of these twelve factors,” she said.

“Consider the specific circumstances of this case, which involved a child who was abducted from his mother and has not seen his mother for two years. Instead of taking what the son told them during the private interview at face value, the judges ought to have taken into consideration that the complex issues are not only connected to the child’s wishes, but also his feelings, fears and needs.”

She said it was possible that the Federal Court, in determining the best interests of the children, did not take into consideration important factors such as the moral fitness of the parties involved, the history of domestic violence in the family, and the willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.

“The court may also not have assessed the degree of alignment or alienation in the child’s relationships with each parent and whether the child is psychologically ready to answer a question on his parent of choice.

“In this situation, the child had not had the opportunity to live with his mother for a period of time and to consider the benefit of going through a reunification period with his mother after so many years of being apart from her.”

Wong added that the court might also have failed to consider the child’s rationale for making his choice or to determine whether his request to stay with his father was made at the father’s suggestion.

She said that even if the son was truly expressing his own preference, one would need to understand all the issues associated with his making such a preferential statement, such as the nature of his relationship with his mother and the conflict between them, if any.

According to her, judges may take into consideration a child’s wishes if the child is deemed to be of sufficient age to formulate an independent opinion based on reasonable factors.

A 2011 survey of custody evaluators in the United States reported a general consensus that 15 years is the minimum age for a child to be allowed to choose to live with a parent or to visit a parent.

“This age is supported by developmental theory and has been found to be consistent across similar studies over the past ten years,” Wong said.

She questioned whether the court had evaluated the best interest of the children in the context of the siblings’ relationship with each other.

“The focus must not only be on the needs of each child vis-a-vis the child’s relationship with each parent, but the needs of each child and his or her siblings and their relationships with one another,” she said.

“When the court awarded custody of the son to the father, the court may have not considered whether it would be in the best interest of the boy to continue living with his father even though it would mean he would not be able to live not only with his mother, but also his sister.”