Michigan Judge Should Have Ordered Detention of Mother, Not Children

The case in which a Michigan Family Court judge sent three children, aged 9, 10 and 15, to a juvenile detention facility, has attracted much attention.

While it is difficult to criticize a judge without familiarity with all the material relating to the family, after reading a transcript of the hearing which took place on 24 June (the judge ordered the release of the children on 10 July), a number of disturbing matters appear.

The children, whose father is an Israeli engineer now living mainly in Israel, and whose mother is a pediatric ophthalmologist, have been the subject of highly contentious visitation proceedings, mainly before the same judge, for 5.5 years. These proceedings have been accompanied by wide publicity, including the name of the family and pictures of the children.

The judge was, rightly it seems, of the view that the children’s reluctance and refusal to have contact with the father were a result of the mother’s actions and words. All efforts, including attempts at treatment of the children, had failed. But in the face of alienation of the children towards the father, the court embarked on a rising scale of persuasion, and latterly threats, not against the mother but against the children.

The hearing in which the judge found the children to be in contempt of court took place with the presence of lawyers for each of the children; but it appears that they were only appointed immediately before the hearing, and had not had time to take instructions from the children, and were largely passive despite the threat of detention. The father tried to express his objections to the course of action which the judge was proposing, and the mother’s lawyer did not manage to address the judge.

The judge compared the children to Charles Manson’s cult, and described the place to which she was going to send the children as a kind of prison, in which the children would be kept in separate cells, with no contact between them, and would be deprived of elementary privacy, even in the lavatory.

After finding the eldest boy in contempt, the judge ordered the younger children to have lunch with the father, in the presence of court official, in the court cafeteria, and when they appeared to refuse, she found them also to be in contempt, and ordered that all three be removed to a juvenile detention facility.

In the end the judge ordered the children to stay in a facility, within the juvenile detention centre, in which abused and neglected children are housed. She also banned all contact with the mother, and fixed the next hearing for early September.

It is surprising that none of the attorneys involved, for the children or either of the parents, asked to court to defer the removal of the children until an appeal could be heard.

Cases of refusal by children of contact with one of the parents are unfortunately not a rarity, in Israel as in other countries. The reason for refusal is not always because the custodial parent incites them against the other parent, but when this is the case, this should be regarded as abuse of the children by that parent, and constitutes a breach of one of the primary parental responsibilities – to ensure that the children benefit from a healthy relationship with both parents despite their separation. In such a case, the efforts of the court need to be accompanied by sanctions against the alienating parent, and not against the children, who are almost always unwitting soldiers in the litigation battle and many of whom suffer from psychological, and sometimes psychiatric, damage as a result of the catastrophic breakup of the family and the alienation. It seems that children who are in the 8-10 age group are the most vulnerable when parents separate; in the Michigan case, the older boy, who was clearly regarded by his siblings as a leader, was about 9 when the proceedings started. He had reported violence by the father towards the mother and also a disturbance at one of the visits; but it seems that none of these incidents were sufficient to cause a finding by any court against the father.

In any case, the children need therapy; threats and punishments are likely to confirm their refusal of contact, especially where the alienating parent will shift the blame on the other parent, even if that parent opposed punitive action.

In the Michigan case, the judge described the children as brainwashed; but instead of penalizing the mother, who was clearly responsible, she chose a course of intimidation against the children. The children had clearly behaved badly and disrespected the court’s decisions; but punishing them, or even threatening to punish them in the terms she used, when the two younger children were clearly below the age of criminal responsibility, shows that the judge regarded the children as parties to the court proceedings. Her words seem to express frustration and anger, rather than the calm and deliberation that are to expected from a judge even, and perhaps especially, in a difficult and highly charged case.

Cases similar to the one described are dealt with differently in Israel.

As soon as it appears that court determined contact arrangements are not being complied with, it is essential to have an independent expert opinion as to the reasons, as swiftly as possible. Time is of the essence, especially with younger children, since a child will often interpret the lack of contact as indifference on the part of the parent from whom he is separated, even if he is not told by the custodial parent that the other parent is dangerous, or hates the child, etc.

If there is no cogent reason for the absence of contact, supervised meetings of the children with the alienated parent should be ordered. If these do not take place, and it is clear that the principal reason is obstruction by the custodial parent, then the obstructive parent should be held in contempt, and punished, by fines in increasing amounts, for each unjustifiable missed meeting of the child with the other parent. Where this is inappropriate, because of lack of means, or ineffective, then it is this parent who should be sentenced to short periods of imprisonment, even of a few days, during which the children will be placed with the other parent (or where this is impossible, with a close relative of the other parent). In a severe case, the court will order that the children be placed in the custody of the other parent; this was the result of a recent case in Israel, and the decision of the Family Court was affirmed on appeal.

Experience shows that this is usually effective, provided that the situation has not been allowed to go on for months or years.

Proceedings in the Family Court in Israel are held under strict prohibition of publicity regarding the names of the parties and any other identifying information, except with the leave of the court.

There are detailed procedures for the views of the children to be brought before the court, and while many judges interview children, this is done in the judge’s chambers in the presence of a social worker; appearance of the child in open court is extremely rare.

Any proceedings regarding contempt of court leading to imprisonment are held with deep respect for due process, and decisions are detailed and recite all the relevant details which led to the decision. Such decisions must be reported by the court to the Attorney-General, who can intervene if he sees fit. And the object of penalties for contempt of court is not to punish the person for past behavior, but to convince him to comply with the court’s instructions in the future.

It is hard to predict what effect the hearing, and the way in which it was conducted, and the stay in the children’s detention facility, will have on these children. But penalizing a child for not having a reasonable relationship with his parent, or even threatening him with dire results if he does not do so, clearly goes against the primary responsibility of the court – to act in the best interests of the child.