Brad Pitt wins joint custody with Angelina Jolie. What the case says about kids’s rights.

Brad Pitt and Angelina Jolie’s fierce, year-long custody case came to a tentative conclusion this week when a judge granted Pitt joint custody over his ex-wife’s objections. We don’t know much about the details of the case, and much of it is because the judge sealed the court record at the beginning of the litigation out of concern for the privacy of the children, an understandable decision in a celebrity case. But one thing that turned out was another obvious decision by the judge not to testify with their children under the age of 18.

Judges can literally decide their fate without ever seeing them. In my professional experience, a child’s voice is lowered or silenced far too often.

It’s a common practice – and it’s a major disadvantage for the people whose lives are hardest hit by the resulting custody regimes. Indeed, Jolie challenges the result. She alleged in a lawsuit that her children’s testimony was “critical” and “relevant to the health, safety and wellbeing of children”. (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 sheds light on how children’s interests are and are not being considered in family courts across the country. Family courts evaluate custody disputes on a child’s “best interests” basis and should consider a child’s exposure to domestic violence or substance abuse – which often go hand in hand – and any other significant sharpness between parents, as well as positive experiences with parents who have children believe they should influence the custody outcome. But hearing their testimony can be incredibly difficult.

As a lawyer who primarily represents abused children, I have represented many who have important information and perspectives to share with judges deliberating on their fate. Typically, however, only older children 12 and older are allowed to testify to facts and express preference in custody disputes, and even then, permission is at the discretion of the judge.

Although their well-being is at the center of a custody decision, children are generally not considered parties in family law cases. As a result, they have no inherent right to testify or to participate in the trial in any way. Judges can literally decide their fate without ever seeing them.

In my professional experience, a child’s voice is lowered or silenced far too often. Often times, this is a response to parents who are simply trying to increase their voices over that of their children by asking their children not to testify and offering substitutes like other adult witnesses or documents. However, such evidence is usually inherently insufficient. Children know the facts of their life with their parents best because they have lived them firsthand. And only they really know what they feel about it.

In one case, I took on the role of a 13-year-old after her parents had fought against each other for five years in front of three different judges and in seven child welfare inquiries. My client was never allowed to testify or be given legal protection from mental or physical abuse.

I accompanied her to the next family court hearing with her parents, who were prepared to fight each other again. I asked the judge to give the child the first opportunity to speak. “Why?” he asked. “She has to be the one to tell you,” I replied. He turned to her and asked why she wanted to talk to him. She raised an arm in the air. “Because I only have one good arm,” she replied, “my father hit me so hard that I have permanent nerve damage.” On that day, she received her first legal protection from abuse.

Some argue that children should never be placed in the position my client was in as this could damage the parent-child relationship if a child testifies against one parent or chooses a parent to live with above the other . I do not agree. Children should be empowered to tell their truth about parent abuse. The law should not suggest that children lack the inherent right to tell about their experiences to anyone they wish. Abuse brings enough undeserved shame and silence to children as it is. The law shouldn’t reinforce that.

Others argue that children who testify about abuse are wrongly forced to relive their abuse on the witness stand. That’s absurd. I was sexually abused as a child. I am now 52 years old. If I stayed away from a witness stand, I was never spared reliving the abuse. My child clients who have testified in family, criminal, and civil courts have all told their stories privately. When you tell your story to a judge or jury, you find it empowering, healing, and affirming. It was her first opportunity to control how her life is lived after an adult took that control away.

Some have also argued that children are unreliable witnesses that they could lie to manipulate an outcome they want or be manipulated by one parent to falsely accuse the other of wrongdoing. These arguments ignore two facts. First, children are able to tell the truth from the lie at a very young age. Second, judges do not accept allegations from children of abuse of face value. Rather, they are familiar with seeking corroborative evidence before accepting an allegation, including ordering an independent medical or psychological assessment of the child.

In confrontational family courts, it goes without saying that neither of the two warring parents can really say that their views and recitations of facts are not biased. Pitt and Jolie certainly told their stories to the judge, but Jolie’s claims that their children have a voice are profound. The best evidence of their experiences with their parents may not reach the judge. This judge, like judges across the country, judges the right of children to live their best lives, as well as the rights of their parents.

In her autobiography, “I Know Why the Cage Bird Sings,” wrote Maya Angelou of the abuse she endured as a young child, she said, “There is no greater torment than carrying an untold story.” Confess in our courts we invite everyone to speak their truth freely, but in fact children’s voices are often suppressed.

All of this begs the question: is it time to give children absolute testimony if they want to tell their stories to a judge who will decide their fate? Should we spare these children the agony of having their untold stories in them while an adult ponders their fate in another room?

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