Judicial Interviews with Children in Custody and Access Cases: Comparing Experiences in Ontario and Ohio

摘要

Social science research and the Convention on the Rights of the Child support children's participation in family law disputes, though there is not a clear consensus on how this should be done. Judicial interviews of children in custody and access cases are one method of involving children, and ascertaining their views and preferences, though the practice raises some complex and controversial issues. The extent to which judges meet with children, and their practices when they do so, varies greatly both within and between jurisdictions. This article reviews the social science literature and Canadian case law on judicial interviews and presents the results of a study based on interviews with 16 judges in Ohio and 30 judges in Ontario with judicial interviews on children in family law disputes. In Ohio, judges are statutorily mandated to interview children, and all the judges have extensive experience with this practice, while in Ontario, judicial experience with interviewing children varies from no experience to quite limited. The themes explored are (i) how often judges interview children, (ii) what factors do judges consider when deciding whether to interview a child or not, (iii) what concerns do judges have regarding interviewing children, and (iv) whether judicial interviews are helpful or not. The authors conclude with recommendations for when and how judicial interviews with children should be conducted, suggesting that the practice should be used more than at present in jurisdictions like Ontario.