Brad Pitt and Angelina Jolie’s acrimonious, yearslong custody case reached a tentative conclusion this week when a judge granted joint custody to Pitt over the objections of his ex-wife. There’s a lot we don’t know about the details of the case, and much of that is because the judge sealed the court file early in the litigation out of concern for the children’s privacy, an understandable ruling in a celebrity case. But one thing that has emerged was another apparent decision by the judge not to let their children under 18 testify.
Judges can literally rule on their fate without ever laying eyes on them. Far too frequently in my professional experience, a child’s voice is discounted or silenced altogether.
It’s a common practice — and it does a great disservice to the people whose lives are most affected by the resulting custody arrangements. Indeed, Jolie is challenging the outcome. She asserted in a court filing that her kids’ testimony is “critical” and “relevant to the children’s health, safety and welfare.” (Pitt was cleared of child abuse allegations by the Los Angeles County Department of Child and Family Services and the FBI in 2016.)
The case puts a spotlight on how children’s interests are and are not considered in family courts nationwide. Family courts evaluate custody disputes based on what’s in a child’s “best interests” and should account for a child’s exposure to domestic violence or substance abuse — which often go hand-in-hand — and any other significant acrimony between the parents, as well as positive experiences with parents that children might feel should affect the custody outcome. But getting their testimony to be heard can be incredibly difficult.
As a lawyer who primarily represents abused children, I have represented many who have critical information and perspectives to share with judges who are deliberating their fates. Yet typically, only older children from age 12 up are allowed to testify to facts and express a preference in custody disputes, and even then the permission is at the judge’s discretion.
Despite their welfare being the central consideration of a custody decision, children are generally not deemed parties to family law cases. For that reason, they have no inherent right to testify or participate in any way in the proceedings. Judges can literally rule on their fate without ever laying eyes on them.
Far too frequently in my professional experience, a child’s voice is discounted or silenced altogether. Often this is in response to parents who simply seek to amplify their voice over that of their children, by requesting that their children not testify and offering substitutes such as other adult witnesses or documents. But such evidence is usually inherently inadequate. Children know best the facts of their lives with their parents because they have lived them firsthand. And only they truly know what they are feeling about it.
In one case, I undertook representation of a 13-year-old after her parents battled each other for five years in front of three different judges and in seven child welfare investigations. My client had never been allowed to testify nor given any legal protection from mental and physical abuse.
I escorted her into the next family court hearing with her parents geared up to fight each other once again. I asked the judge to give the child her first chance to speak. “Why?” he asked. “She needs to be the one to tell you,” I replied. He turned to her and asked why she wanted to speak to him. She raised one arm in the air. “Because I only have one good arm left,” she answered, “My father punched me so hard, I have permanent nerve damage.” That day, she got her first legal protection from abuse.
Some argue that children should never be put in the position my client was in because it risks harming the parent-child relationship to have a child testify against a parent or choose one parent to live with over the other. I disagree. Children should be empowered to speak their truth about any parent’s mistreatment. The law should not suggest to children that they lack the inherent right to tell anyone they want to about their experiences. Abuse inflicts enough undeserved shame and silence on children as it is. The law should not reinforce that.
Others argue that having children testify about mistreatment unfairly forces them to “relive their abuse” on the witness stand. This is absurd. I was sexually abused as a child. I am now 52 years old. Staying off a witness stand never spared me reliving the abuse. My child clients who have testified in family courts, in criminal courts and in civil courts have all previously told their stories in private. When they tell their stories to a judge or jury, they find it empowering, healing and validating. It has been their first opportunity to control how their lives will be lived after an adult took that control away.
Some have also argued that children are unreliable witnesses, that they might lie to manipulate an outcome they want or can be manipulated by one parent to falsely accuse the other of wrongdoing. Those arguments disregard two facts. One, children are developmentally able to discern truth from falsehood at a very young age. Two, judges do not accept children's claims of abuse on face value. Rather, they are well-versed in seeking corroborating evidence before accepting any claim, including by ordering an independent medical or psychological evaluation of the child.
In confrontational family courts, it’s axiomatic that neither of two feuding parents can truly say their views and recitations of fact lack any bias. Pitt and Jolie have assuredly told the judge their stories, but Jolie’s assertions about her children having a voice are profound. The best evidence of their experiences with their parents may well not reach the judge. That judge, like judges across the country, is as much judging the children’s right to live their best lives as judging their parents’ rights.
In her autobiography, “I Know Why the Caged Bird Sings,” Maya Angelou wrote of the abuses she endured as a young child and said, “There is no greater agony than bearing an untold story inside you.” In our courts of law, we profess to invite all to speak their truth freely, but in fact the voices of children are often suppressed.
This all begs the question: Has the time come simply to give children an absolute right to testify if they want to tell their stories to a judge who is deciding their fate? Should we spare those children the agony of having their untold stories caged inside them while an adult pontificates about their fate in another room?