Legal Interpreting Services for Family Law Cases
Services of legal document translators and legal deposition interpreters are often required by family law attorneys. Family law topics are emotionally driven. Few are more emotional, however, than child custody issues. Regardless of the country, the court, or the litigants, a child custody case carries a certain type of emotional charge unlike most other cases.
The emotion associated with child custody issues is amplified by the need for legal translation services. Most litigants are already distrustful of the court system to tell them what they can do with their child or which parent will get more custody, but adding the variable of whether the court can understand their argument creates a truly unique and difficult litigation situation.
Hypothetical: Maria and Frank
Let’s use a hypothetical case to explain the issues associated with legal translation in the family law context. The following is a situation that involves multiple avoidable legal translation issues (as discussed further below):
Maria and Frank married in 2000. Maria is from Uruguay and Frank is from Spain. The couple had two children: Christopher and Cara.
Because of the nature of Frank’s employment, the family moved all around the world. In 2013, however, the couple divorced. At the time of the divorce they were living in Bangor, Maine. The divorce proceedings were hotly contested and complex because of the child custody issues, the parents’ desire to move back to their country of origin with the children (Maria to Uruguay and Frank to Spain), and allegations that Frank was abusive. To add to the complexity, the courthouse where the proceedings occurred was in a rural area and there was only one Spanish court interpreter available. He grew up in the United States and had Mexican parents.
The children eventually moved with Maria to Uruguay. Later, however, Frank took the children to California and did not intend to bring them back. Maria sought the return of the children under the Hague Convention on the Civil Aspects of International Child Abduction. Frank alleges that Maria was abusing the children, so he should be able to keep the children in California.
Legal Translation Issues in Child Custody Cases
This hypothetical situation potentially results in many legal translation issues. First, it is necessary to note the importance of proper translation in the context of a custody case. Custody cases usually require that a judge perform a “best interest” analysis (i.e., what course of action is in the children’s best interest) when determining how to award custody. The court does this by receiving testimony from the parties and determining what the facts of the case are. The court must have a clear picture of the facts so that it can apply those facts to the relevant best interest factors.
Second, the legal interpreter must understand the concept of vernacular. For example, while it is well known that most South American countries speak Spanish, it is important to understand that regional dialects are quite different, especially between countries. Thus, Maria’s Uruguayan Spanish is different than Frank’s Spanish from Spain. And, both Maria’s and Frank’s Spanish is different from the translator’s limited Mexican Spanish. Failure to understand this concept may result in the court receiving inaccurate facts when determining the children’s best interest. This is made even more important, however, when there are allegations of abuse involved.
Regionally, words like hit, kick, scratch, etc. may have different connotations. Maria’s use of the word “punch,” for example, may be translated by the court interpreter as “tap” or something less serious than Maria’s intended definition. This mistranslation could lead to the judge not taking Maria’s testimony seriously, possibly resulting in the children being with Frank, an alleged abuser.
Finally, the parties face another matter of emotional urgency: Mother’s action for the return of the children under the Hague Convention. By this time, the mistranslations from the original divorce may be included in the parenting time plan either by way of a finding of no abuse or that Frank is entitled to extended time.
It is important as a family law practitioner to first understand the emotional issues associated with child custody matters and how legal translation affects the issues. With an understanding of this concept, the attorney is better able to position themselves and their client so that they can present a clear argument and correct any possible mistranslations.
It is also essential that the attorney properly select and brief the legal translator. Ensuring that the translator understands the differences in vernacular, like the issue with the Mexican Spanish speaking interpreter trying to understand the Uruguayan and Spain Spanish speakers in the hypothetical, is essential. Understanding that different countries use different vernacular while speaking the same language will put the attorney in a position to ensure that the translator is from the same country or understands the difference in vernacular. It is also important that the translator is briefed on the type of case in order to prepare themselves for the translation they will do (i.e., an emotionally driven narrative versus a recitation of boilerplate contract terms).
Finally, it is good practice to review any final documents, like a parenting time plan, to ensure that the legal translation is correct under the given circumstances. In the hypothetical, failure to properly check the parenting time plan could have led to the judge in the Hague Convention return case misinterpreting the plan or following the plan’s language that was different than what actually happened in the trial. The attorney must ensure that the documents are properly translated.
Child custody matters require professional legal translation for the court to fully understand the facts and make a best interest determination. It is essential, however, that practitioners understand how legal translation may affect their case. It is also important that attorneys understand that they must review all rulings and court documents to ensure their proper translation from the client’s language to English.