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Was judge bullying child? Disciplinary hearing for US family court judge

By March 13, 2018October 25th, 2021No Comments

Was a US judge bullying a child? The controversial courtroom manner of a US judge highlights the problem of how family courts can best allow a child to participate in family court decision-making processes, while at the same time protecting them from any harm that might be caused by being directly involved in the litigation, an issue relevant to Australian families.

A family court judge in the US is set to face a disciplinary hearing in relation to a case in which she is alleged to have improperly held a mother in contempt of court.  The Nevada Commission on Judicial Discipline also states that the judge violated judicial canons including “failing to be patient, dignified and courteous to litigants,” and “failing to promote confidence in the judiciary.”  Outraged parents claim this is an example of a ‘judge bullying a child’ situation.

The backdrop of the case is a scenario of a long period of parental conflict over custody, allegations of parental alienation, and both the child and her parents not following court orders.

The disciplinary action centres around the judge’s behaviour at one hearing in particular, when the judge “ordered all parties, except the minor child, to leave the courtroom, and [the judge] addressed the child for nine minutes off the record”. Following this,

“In [the Mother’s] absence, [the judge] awarded the Father temporary sole legal and physical custody, terminated the Father’s child support obligation, ordered the Mother to pay the statutory minimum child support to the Father, and the Mother was to have no contact with the minor child.

“The minor child screamed and cried during the entire process while the Father remained impassive at his counsel table.  [The judge] addressed the crying minor child by stating that the change in custody occurred because the Mother and minor child were not cooperative with the Court ordered visitations.  [The judge] further stated that if the minor child refused to go with the Father she would end up in Child Haven, which [the judge] referred to as jail for kids.”

The main problem for the US judge is that contempt of court isn’t supposed to be “sanctioned” or punished by changing the custody of a child. But it’s also the courtroom manner of the judge which is under the microscope. Was threatening the child with ‘kid jail’ akin to the judge bullying the child?

In fact, Judge Hughes has been the subject of numerous accusations by parents of being a courtroom “bully”.  Parents have objected to exchanges such as this occurring:

Girl, 12: “You don’t understand. I love her. And I’m gonna miss her so much. Please don’t do this to me!”

“You’re to take her with you,” Judge Rena Hughes tells the girl’s father in a hearing.

Girl, crying: “No!! I don’t want to.”

Judge Hughes: “That’s too bad.”

Is this a judge bullying child, or merely being tough in dealing with courtroom disobedience?  The outcome of the judge’s May hearing will be interesting.

So can Australian judges talk directly to children in family law matters?  Actually, yes.  It is enshrined in the United Nations Convention on the Rights of the Child that children have the right to participate in judicial and administrative proceedings. And under Australia’s Family Law Act, children are not prohibited from giving evidence–it is spelled out that children’s views should be considered by judges.  The Family Law Rules provide that judges, judicial officers or magistrates may interview children in chambers or elsewhere, though what the child says during this interview is inadmissible in court, and the judicial officer is only able to take the discussion into account in their decision making process. The Family Law Rules also state that leave of the court needs to be obtained if a child is to be called as a witness, or remain in the courtroom, or swear an affidavit for the purposes of the proceedings unless they are a party or seek to become a party.

While the option is available, in practice it is very rare for judges to allow children to give evidence directly in family court.  This is mainly because the courts consider that children should be kept from the spousal conflict as much as possible, but there are also other concerns, such as the potential lack of expertise judicial officers may have for interviewing children.

In AIFS research into children’s direct participation in family law courts released in 2013, scholar Michelle Fernando confirmed that it is very rare for Australian judges to meet with children:

Of the hundreds of children’s matters decided in Family Law Courts in Australia each year, there are only one or two cases in which a judicial officer will meet with a child.

Instead, there are various other methods through which the court hears evidence of children’s views.  The two key mechanisms available are the evidence of Independent Children’s Lawyers, and family reports by expert witnesses.  Courts may also hear from other witnesses (the child’s parents and others).

In Australia, there has already been much reform aimed at making family court proceedings more “child focussed”. For example, the “Less Adversarial Trial”, the Contact Orders Program and the Magellan Program. Other law reform initiatives and inquiries have drawn attention to the importance of children’s participation in judicial settings. But over the years, debate has continued over child participation methods.

It’s highly likely that Australia’s current parliamentary review of family law will therefore include comprehensive discourses around participation of the child in family law hearings and how to balance the need to protect the best interests of the child with the right of the child to be heard.

Read about the US ‘judge bullying child’ case: ReviewJournal

Do you need assistance with a parenting matter?  Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.  Cristina is an accredited Independent Children’s Lawyer, qualified to be appointed by the court.

You might also like to read our blogs on Independent Children’s Lawyers here and here.

Please note our blogs are not legal advice. For information on how to obtain the correct advice, please contact Alliance.

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