Originally Appearing in AAPL Newsletter, January 2019, Vol. 44, No. 2
Leo Szilard, a well-known physicist and inventor, who was born in Budapest and educated in Berlin, achieved fame in the United States. He invented the linear accelerator, cyclotron and electron microscope. In 1939, he wrote a historic letter to President Franklin D. Roosevelt which was signed by the pacifist, Albert Einstein. That correspondence led to the Manhattan Project, whose team built the first atom bomb.
Einstein wrote FDR:
“…It may become possible to set up a nuclear chain reaction in a large mass of uranium, by which vast amounts of power and large quantities of new radium-like elements would be generated…This new phenomenon would also lead to the construction of bombs, and it is conceivable – though much less certain – that extremely powerful bombs of a new type may thus be constructed…”
Szilard was one of the founders of the Salk Institute for Biological Studies. He died in 1964, at age 66. In 1961, his book of short stories, The Voice of the Dolphins, was published. The book was one way of demonstrating his moral outrage about the Cold War and the dangers of nuclear weapons. The fictional story by the same name called for the establishment of a European consortium to study molecular biology. When this became a reality, the association was named after him. Its stamp depicts dolphins.
I read this book when I was 15 years old. I am now 72, but that story has remained close to my heart. In his futuristic tale, Szilard wrote of a marvel:
“…The organization of the brain of the dolphin has a complexity comparable to that of man had been known for a long time. In 1960, Dr. John C. Lilly reported that the dolphins might have a language of their own, that they were capable of imitating human speech and that the intelligence of the dolphins might be equal to that of humans…Subsequent attempts to learn the language of the dolphins, to communicate with them and to teach them, appeared to be discouraging, however, and it was generally assumed that Dr. Lilly had overrated their intelligence…”
That short story inaugurated my lifelong commitment to working with children: to learn how to communicate with them, respect them and recognize that they possessed an abundance of gifts for those who listened.
Today, everyone takes this for granted. Clinicians and researchers appreciate that developmental stages, genetics, environment, resilience and many other factors – some yet to be discovered – lead to the complexity of the term “child.” And this intricacy is ineluctably experienced in forensic psychiatry.
Legal definitions vary; case law may be confusing; rules are some-times arbitrary and contradictory; judges may possess or lack the experience, training and ability to speak with children in the mystifying in camera interview. Questions confront us: How do you define a law guardian? What are the responsibilities of the lawyer for the child? Do Court-appointed Special Advocates help with or obfuscate issues? What about custody disputes, severance actions, foster care decisions, Miranda rights, delinquency dispositions? How much weight should judges give to children of what age? What does “weight” mean, any-way?
A five-year-old girl ensnared in a custody battle offered, unsolicited, that she wanted to live with her mother, a veterinarian. Her mother promised, the child told me, all the while drawing a picture of a kitten, that she and her mother would live in the country and have dogs and cats and maybe even a horse. The law guardian, sometimes called the Best Interests Attorney, related to the court that his investigation could not support the child’s wishes. On the contrary, he said, she had been programmed by her mother. In this state, however, that child could have her own counsel. Who would prevail? How much “weight” ought the court grant this child’s wishes?
Another state codified the hoary “Age of Reason” doctrine through case law. Any child seven or older could hire counsel and compel the court to consider her desire or explain through findings why the child’s wish did not prevail. What about “weighing” the child’s preference?
A 13-year-old boy, whose single father lost his parental rights, was ordered to live with relatives in another state. He demanded to be returned to his home state, because his friends lived there. His lawyer was ardent; the law guardian informed the court that the child wanted to return because the house rules were lax, and his friends were experimenting with drugs and alcohol. The seasoned judge took the child in chambers and with empathy explained his reasoning and told the teenager he was staying where he was.
A 16-year-old girl was caught up in the vortex of a custody battle. She refused to have any communication with her father. He insisted their daughter had been alienated by his ex-wife. The mother charged that the father had been violent toward her and their daughter. The court followed the teen’s wishes. Another judge might have ordered a therapeutic process with the hopes of helping father and daughter reconnect. A domestic violence finding in most states requires a detailed explanation by the trier of fact if he deviates from the presumption that DV is not in the child’s best interest.
About 20 years ago, I was part of a multidisciplinary team in the New York State First Appellate Division convened to provide firm definitions of the clear boundaries between guardian ad litem and a lawyer for the child. What if the child is three and the family has the money to pay for a law guardian and an attorney for the child? Do these professionals have different responsibilities? Does the law guardian in this Division have to be an attorney? (Rules varied across the state.) After a year, we thought we had cleared up the confusion. But some judges still made up their own minds about which professionals did what.
In some areas, Court-appointed Special Advocates have wide latitude in their responsibilities. They might opine that a nine-year-old’s wishes should be followed. Or, they may be limited to steering the family through the maze of the court system. There might be no statute or case law that sets the boundaries. There are no easy answers to these conundrums. We know that cetaceans, e.g. dolphins, porpoises and whales, are intelligent, play, communicate and even pass on what they have learned to their offspring. By 2021, Swedish researchers expect to have compiled a complete dictionary of cetacean language. One hopes these scientists will listen as well.
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