The U.S. Supreme Court announced Monday that it would not hear the case of a 13-year-old Oregon boy whose parents disagree over whether he should be circumcised. The father claims the boy wants to have the operation, but the mother contends that he is merely bending to his father’s will. Now a trial judge will attempt to ascertain the boy’s wishes. How can the court determine what the boy really wants?
By asking him in private. Because 13-year-old children are generally considered capable of developing meaningful preferences, the judge will invite the boy into chambers (and away from his parents) for a private conversation. The separation removes the immediate influence of the parents and protects the child from having to publicly wound one of them. If the judge does not find his answers obviously genuine and meaningful, the court will turn to a forensic child psychologist.
The psychologist’s methods are highly individualized and depend on the child’s intellectual capacity. The first step would be a lengthy interview to determine the boy’s emotional condition and attitudes about his family. A direct question about circumcision would be asked late in the interview, if at all. The psychologist would then interview each parent alone and with the child, then the child with both parents. The goal is to observe changes in the child’s answers, mannerisms, body language, or syntax when the parents are present. If he answers the same questions differently depending on whether his parents are in the room, this suggests a lack of independence. In addition, the psychologist would be on the lookout for wooden movements or language that sounds scripted or inappropriately adult—possible signs that the child is “enmeshed” with one or both parents and unable to make his own decisions. In the Oregon case, a psychologist might probe the boy’s knowledge of Judaism—his father converted to the religion—to determine whether his interest in circumcision is a result of a genuine religious conviction or if he doesn’t want to disobey his father.
Based on these interviews, the psychologist would develop a hypothesis about the child’s competency, preferences, and independence. The hypothesis must then be tested through interviews with teachers, neighbors, or other people who have had regular interactions with the child. A psychologist might also check school records for signs of extreme reticence, which might confirm a hypothesis of enmeshment, or self-confidence, which would undermine it. Some psychologists also use projective tests, such as drawing pictures, playing with dolls, or Rorschach inkblots—though the validity of these methods is hotly debated among those in the field.
Following this battery of interviews and tests, the psychologist issues a report and recommendation to the judge. In the Oregon case, the psychologist could adopt any of three conclusions: first, that the boy genuinely wants the circumcision; second, that he genuinely does not; or third, that he is so profoundly influenced by one of the parents that his true wishes cannot be determined or should not be considered. In any event, the conclusion would normally be accompanied by a custody recommendation, and the parties would have the opportunity to examine the psychologist in open court and challenge his or her views. While the judge is not bound to accept the psychologist’s recommendation, most judges do.
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Explainer thanks Reena Sommer; Jeffrey Wittman, author of Custody, Chaos, and Personal Peace; and William B. Zuckerman.