Parenting Time & Decision Making

Parents Use Kids as “Pawns”; Court Appoints Them a Separate Lawyer

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Parents Use Kids as “Pawns”; Court Appoints Them a Separate Lawyer

When parents’ disputes over custody and access get particularly ugly, should the kids have their own lawyer appointed?

In an unusual case called Liske v. Liske, the court evidently thought so.

The parents’ separation had been acrimonious, and despite the lapse of seven years they were still in-and-out of court to resolve custody and access issues related to their two children, aged 14 and 12. According to the court, both parents clearly had “unresolved emotional issues” that made them “bitter”; even though they had both remarried they persisted in focusing on their own interests rather than those of the children. A home assessment report confirmed that the parents’ ongoing conflict was impacting the children negatively, and counselling had failed to help them resolve their differences.

Against this factual background, the legal issue was whether in these circumstances the court should appoint an independent counsel for the children, in order to give them separate representation.

The court reflected on the merits of this proposition. It observed that the appointment of a separate lawyer for the children was a matter within the court’s discretion, but was not something that should necessarily be done routinely each time. Indeed, the general rule was that children should not be separately represented, because it would place them in a position where they would have to choose between their parents, which was undesirable. Instead, in order to ascertain the views and best interests of the children, the court could take their evidence, and could receive the opinions of the appointed family counsellor by way of affidavit, all with a view towards allowing it to assess the children’s best interests without the necessity of separate representation.

With that said, the court recognized that in some less common cases it was desirable for the court to appoint separate lawyers for the children, in situations where they had separate interests and points of view from both of their parents.
This was precisely the case here. The loyalties of the children had been oscillating between the mother and the father, and there was evidence that they were being used as pawns “in a custody/access game played by their parents”. The best option for bringing the children’s own best interests to the forefront was to appoint them a separate lawyer. As the court explained:

The parties to this action have both abdicated a leadership role in determining what is best for their children in spite of able counsel and the assistance of the courts. In this situation, the focus of the court must shift from the parents’ view to what is best for the children. What is best for these children, given the long and bitter relationship of their natural parents, is to have their own lawyer who can put forth their individual positions and perhaps impress upon the parties to this action that their mutual conflict in the eyes of the court is only a secondary and minor concern.

The court continued:

…this is not a situation where the children are being asked to choose between their natural parents, but rather a situation where both parents, by their conduct have removed themselves from realistically representing what is best for their children. After seven years parents who were willing to put the best interest of their children first would have worked out an acceptable accommodation. This has not happened and will not happen until the children’s interest are given a dominant role in this litigation. This is best accomplished by the appointment of counsel.

Do you think this solution has broader benefits? Should children have their own legal representation as a matter of course?

For the full text of the decision, see:

Liske v. Liske, [1995] M.J. No. 362, 105 Man.R. (2d) 256

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.