Do Kids Really Count?

When I began my year as Chair of the Family Law Section in 2009 I had several goals that I wanted to achieve.  Chief among them was rededicating our Section and all family law attorneys to the children that are negatively impacted by divorce.  Children are the true victims of divorce.  For many years the prevailing view has been that divorce was not only traumatic for children but contributed to negative life outcomes for the majority of those whose parents divorced.  The fact is that children going through divorce are negatively impacted now, and to different degrees in the future.   I do not believe that the bench, bar and legislature has focused on this issue in a way that may has made a meaningful difference.      

In 1999, the legislature passed the Parents’ Education Act, N.J.S.A. 2A:34-12.1 – 2A:34:12.8.  The Act requires all parties who have filed an action for divorce, nullity or separate maintenance, where custody, parenting time or support of the minor child(ren) is an issue, to attend the Parents’ Education Program.  While many counties already had a program in place when this Act was passed, the Act provided for specific issues the program should include.    

Pursuant to N.J.S.A. 2A:34-12.3, the purpose of the Parents’ Education Program is to promote cooperation between the parties and to assist parents in resolving issues which may arise during the divorce or separation process, including, but not limited to:

(1) Understanding the legal process and cost of divorce or separation,

including arbitration and mediation;

(2) Understanding the financial responsibilities for the children;

(3) Understanding the interaction between parent and child, the family

relationship and any other areas of adjustment and concern during the process of

divorce or separation;

(4) Understanding how children react to divorce or separation, how to spot

problems, what to tell them about divorce or separation, how to keep communication

open and how to answer questions and concerns the children may have about the

process;

(5) Understanding how parents can help their children during the divorce or

separation, specific strategies, ideas, tools, and resources for assistance;

(6) Understanding how parents can help children after the divorce or separation

and how to deal with new family structures and different sets of rules; and

(7) Understanding that cooperation may sometimes be inappropriate in cases of

domestic violence.

While each county handles its Parents’ Education Program a little differently, it seems the underlying goals of the Parents’ Education Act are being met: parents are being educated about the divorce process, and more importantly, parents are being educated regarding the affects divorce has upon children.

Because the Parents’ Education Program is mandatory for matrimonial litigants where custody or parenting time is an issue, it would only seem logical then that a parallel program be implemented for children going through a divorce.  While parents can take their children to private therapy, there is no program offered by the courts for children, similar to the Parents’ Education Program.  Many families are not in a financial position to be able to send their children to therapy, therefore many children will never have the opportunity to understand the divorce process, nor have a chance to express their feelings to their parents in a safe environment. 

Realizing there was a great need for all children going through divorce to have an outlet, Judge Joseph P. Testa, J.S.C. (Ret.) of Cumberland County, Family Division and Custody/Parenting Time Mediator Pamela R. Homan, M.A., developed a program called Kids Count.  Kids Count was a program available to children ages 5 – 15 whose parents were going through a divorce, which sought to dispel misconceptions about the court process and to let children know they were not alone.  Parents were invited to bring their children to the courthouse after hours so the children would have the chance to view the courtroom and speak with Judge Testa regarding any questions they may have.  They then had the opportunity to express their feelings regarding divorce through drawings and creative writings.

Judge Testa would start by addressing all the parents and children together, discussing what could be expected during the program.  The parents sat in the gallery of the courtroom, while all the children sat up front near counsel tables.  On average, there were 15 to 20 children per session.  After addressing the group as a whole, the children were split up into two groups, divided by age (ages 5 – 9 and ages 10 -15) and taken to separate conference rooms in the courthouse with court staff mediators.  The children were provided a workbook and given art and writing supplies.  The pages in the workbook provided children the opportunity to express their feelings in a non-confrontational manner.  The children were asked to fill in blanks, such as “If I could make a wish about divorce, I would wish…”, “Name something good about divorce…” or “Divorce is…”.  The workbook also asked the children to write a letter to their parents and to draw a picture of divorce.  While the children completed their workbooks, Judge Testa would continue speaking with the parents and reminded them they were the best people to make the decision regarding their children’s future, rather than he, a total stranger. 

The materials created by the children were collected and then released to the parties’ attorneys, only to be viewed in the attorney’s office and not to be given to either parent to take home.[1]  As a silent reminder about the impact of divorce, Judge Testa used to hang the children’s drawings on bulletin boards in his courtroom and throughout the Cumberland County Courthouse.  In fact, one picture, drawn in response to “what does divorce mean to you”, struck Judge Testa so much that it became the logo for Kids Count.    

The Kids Count Program ran from 1997 – 2000 in Cumberland County with great success. Such a simple, 2 hour program, had momentous results.  Of all the children who attend the program, 99% of their parents were able to resolve their custody disputes after viewing the art and writing their children had created during the Kids Count program.  Judge Testa believed it was truly significant to give children going through divorce a voice in the process and based on the results of Kids Count, he was right. 

A long-time friend and colleague of Judge Testa, Judge Michael K. Diamond, P.J.F.P. (Ret.), the former Presiding Judge of the Family Part in Passaic County, also implemented the Kids Count program during his judicial tenure.  Judge Diamond’s program ran from 2000 – 2010, approximately 4 times per year and mirrored Judge Testa’s program, using art and creative writing as an outlet for children going through divorce.  The director of the Passaic County Kids Count program has advised that the program would be returning sometime this fall. 

        During his judicial career, Judge Testa has presented the Kids Count program to The National Judicial College in Reno, Nevada, the New Jersey Supreme Court, as well as many other judicial meetings and conferences, in an effort to gain support and enthusiasm in making Kids Count, a mandatory, statewide program for children.  Now in his retirement, he seeks to revitalize the Kids Count Program, but can only do so with the support of the family bar and our legislature.

            There are so many programs and services available for parents going through divorce, whether through the courthouse, community or private therapy.  It would only seem logical that a program for children going through divorce be offered through the state.  Kids Count is a trial tested and proven program.  As any program, implementing Kids Count statewide would obviously take time, hard-work, dedication and minimal funding, but fortunately there is already a great foundation established by Judge Testa and Judge Diamond.  Once established, Kids Count would not be time-consuming, or costly to maintain, as all it really takes is a few people to volunteer their time and energy and some art and writing supplies.  As it has in the past, Kids Count would yield great results for judges, lawyers, litigants, and most importantly, children.   

**Special thanks to Judge Joseph P. Testa, J.S.C. (Ret.) for sharing his wonderful program and ideas for this column.  The author also thanks Lauren E. Koster, Esq., former judicial law clerk to Judge Testa and associate with Tonneman, Vuotto & Enis, LLC, for her assistance with this column.