Divorce and the voice of the child

Divorce is traumatic for all of us, particularly for the children, because they have to choose whether they will live with their mom or dad

UNICEF Serbia
Children stuck between mom and dad
UNICEF Serbia/2017

23 June 2017

“Divorce is traumatic for all of us, particularly for the children, because they have to choose whether they will live with their mom or dad. My ex-husband insists that the children testify in court as to who they wish to live with after the divorce. He particularly insists on having our 10-year-old son give a statement in court, although the psychologists at the Centre for Social Work noted that the child is confused and frightened, and that his father is exerting great pressure on him. For this reason, I believe our child will not speak frankly before the judges”, says Dragana, a mother of two from central Serbia, who is divorcing her husband after 20 years of marriage.

Dragana’s story confirms the fact that children are often victims of their parents’ conflicts in divorce proceedings.

At the same time, it points to the complexity of the task set before professionals in centres for social work and judges to assess the child’s wishes and true needs when deciding which parent is to be granted custody of the child after the divorce.

The law stipulates that this must always be in the interest of the child, who has the right to express his/her custodial preference regardless of his/her age.

In all litigations involving child custody decision making, the final decision is made by the courts. They are assisted by centres for social work which provide their opinion on specific family relationships.

The opinion of professionals from the centre for social work – psychologists, pedagogues and social workers, has great impact on the court decision, as the professional staff of this institution assesses both family circumstances, and the wishes and needs of the child.

However, research on the position of the child in civil actions in Serbia has shown that information of significance in determining the best interest of the child falls between the cracks in communication between the centres for social work and courts.

On the one hand, judges sometimes fail to pose important questions to the centres of social work regarding specific family situations, for example whether the child is exposed to domestic violence.

On the other hand, centres for social work give courts generalized findings so that judges do not have clear insights into the situation, which impedes their decision-making.

My ex-husband insists that the children testify in court as to who they wish to live with after the divorce. He particularly insists on having our 10-year-old son give a statement in court, although the psychologists at the Centre for Social Work noted that the child is confused and frightened, and that his father is exerting great pressure on him.

Dragana

In order to improve the collaboration between centres for social work and courts in civil cases involving the rights and interests of the child, UNICEF has developed a set of practical operation guidelines for judges and social workers.

These are clear directions for their future work which should help enhance their practice.

This is part of a broader, 3-year project for the promotion of the rights of the child through the strengthening of the judicial and social welfare systems, implemented by UNICEF in partnership with the Ministry of Justice and the Ministry of Labour, Employment, Veteran and Social Affairs of the Republic of Serbia, thanks to funding provided by the European Union.

“These guidelines are important, because they incorporate all questions that need to be answered by centres for social work for the court. On the other hand, they also make it easier for judges to train themselves on how to deal with children taking part in court proceedings – whether as parties to the case, witnesses or interveners,” says judge Zorana Delibašić of the Appellate Court in Belgrade. 

All proceedings involving child participation, from divorce cases to lawsuits for protection from domestic violence are considered urgent, but often last longer than they should. Operation guidelines should help ensure that civil actions concerning child rights and interests are more efficient.