Brad Pitt wins shared custody with Angelina Jolie. What the case says about children's rights.
Brad Pitt and Angelina Jolie's acrimonious custody case that has been going on for years came to an interim conclusion this week when a judge granted joint custody to Pitt over his ex-wife's objections. 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 record early in the litigation out of concern for children's confidentiality, a decision understandable in one. celebrity affair. But one thing that stood out was another apparent decision by the judge not to let their children under the age of 18 testify.
Judges can literally rule on their fate without ever looking at them. Far too often in my professional experience, a child's voice is dismissed or completely silenced.
This is common practice - and it does a huge disservice to those whose lives are most affected by the resulting custody arrangements. Indeed, Jolie disputes the result. She said in court records that her children's testimony was "critical" and "relevant to the health, safety and well-being of children." (Pitt was cleared of allegations of child abuse by the Los Angeles County Department of Child and Family Services and the FBI in 2016.)
The case highlights how children's interests are and are not being considered by family courts nationwide. Family courts assess custody disputes based on what is in the “best interests” of the child and should take into account a child's exposure to domestic violence or drug addiction - which will range. often hand in hand - and any other significant acrimony between parents, as well as positive experiences with parents which the children believe should influence the outcome of care. But delivering their testimony can be extremely difficult.
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As a lawyer representing primarily abused children, I have represented many people who have critical information and views to share with the judges who are deliberating on their fate. Yet, as a general rule, only older children from the age of 12 are allowed to testify to the facts and express a preference in custody disputes, and even then, permission is at the discretion of the judge. .
Although their well-being is the central consideration in a custody decision, children are generally not considered parties to family law cases. For this reason, they have no inherent right to testify or to participate in any way in the proceedings. Judges can literally rule on their fate without ever looking at them.
Far too often in my professional experience, a child's voice is dismissed or completely silenced. This is often in response to parents who are simply seeking to amplify their voice over that of their children, asking their children not to testify and offering them substitutes such as other witnesses or adult documents. But such evidence is generally inadequate on its own. Children know the facts of their lives with their parents better because they have experienced them firsthand. And only they really know how they feel about it.
In one case, I undertook the representation of a 13-year-old girl after her parents clashed for five years before three different judges and in seven child welfare inquiries. My client had never been allowed to testify nor received legal protection against mental and physical abuse.
I escorted her to the next family court hearing with her parents ready to fight again. I asked the judge to give the child his first chance to speak. " Why? " He asked. "She must be the one to tell you," I replied. He turned to her and asked her why she wanted to talk to him. She raised an arm in the air. “Because I only have one good arm left,” she replied, “My father hit me so hard I have permanent nerve damage.” That day, she got her first legal protection against abuse.
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Some argue that children should never be put in the situation my client was in, as it would risk damaging the parent-child relationship to have a child testify against a parent or to choose a parent to live with rather than l 'other. I do not agree. Children should be empowered to speak their truth about the abuse of any parent. The law should not suggest to children that they do not have the inherent right to tell anyone they want about their experiences. Abuse inflicts enough undeserved shame and silence on children. The law should not reinforce this.
Others argue that having children testify about abuse unfairly forces them to "relive their abuse" on the witness stand. This is nonsense. I was sexually abused as a child. I am now 52 years old. Not being on the witness stand has never saved me from reliving the abuse. My child clients who have testified in family courts, criminal courts and civil courts have all told their stories in private. When they tell their stories to a judge or jury, they find it stimulating, healing and validating. It was their first opportunity to control how their life will be lived after an adult took that control away from them.
Some have also argued that children are unreliable witnesses, that they can lie to manipulate an outcome they want or can be manipulated by one parent to falsely accuse the other of wrongdoing. These arguments ignore two facts. First, children are developmentally able to discern truth from lying at a very young age. Second, judges do not accept allegations of child abuse at face value. On the contrary, they are well versed in seeking corroborating evidence before accepting any claim, including ordering an independent medical or psychological assessment of the child.
In family confrontation courts, it is evident that neither of the two conflicting parents can truly say that their opinions and recitations of the facts are devoid of bias. Pitt and Jolie certainly told their stories to the judge, but Jolie's claims that her children have a voice run deep. The best evidence of their experiences with their parents may not reach the judge. This judge, like judges across the country, judges the rights of children to live their best lives as much as the rights of their parents.
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In her autobiography, “I Know Why the Caged Bird Sings,” Maya Angelou wrote about the abuse she suffered as a young child and said, “There is no greater agony than to carry an original story within you. In our courts, we claim to invite everyone to speak their truth freely, but in fact children's voices are often stifled.
All of this begs the question: Has the time just come to give children the absolute right to testify if they want to tell their stories to a judge who decides their fate? Should we spare these children the agony of having their untold stories locked inside them while an adult pontificates about their plight in another room?
Michael dolce
Michael Dolce, a child sexual abuse survivor, is a litigation lawyer at Cohen Milstein Sellers & Toll PLLC. He leads the company's team on Sexual Abuse, Sex Trafficking and Domestic Violence.
