Brad Pitt Wins Joint Custody With Angelina Jolie. What The Case Says About Youngsters’s Rights. – Household and Matrimonial
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The celebrity couple’s struggle shines a spotlight on what children’s interests are like and neglected in family courts nationwide.
Brad Pitt and Angelina Jolie’s bitter, year-long custody case came to a preliminary conclusion this week when a judge awarded Pitt joint custody over his ex-wife’s objections. There is much that we do not know about the details of the case, and much of it is because the judge sealed the court record out of concern for the privacy of the children at the beginning of the litigation, 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.
It’s a common practice – and it does a great disservice to the people whose lives are hardest hit by the resulting custody arrangements. In fact, Jolie questions the result. She claimed in a court file that her children’s testimony was “critical” and “relevant to the health, safety and welfare of the children”. (Pitt was acquitted 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 in family courts across the country. Family courts judge custody disputes based on what is in the child’s “best interests” and should consider a child’s exposure to domestic violence or substance abuse – which often go hand in hand – and any other significant bitterness between parents and positive experiences with the child Parents who may feel children should influence custody. But getting your testimony to be heard can be incredibly difficult.
As an attorney primarily representing abused children, I have represented many who have critical information and perspectives to share with judges deliberating on their fate. Typically, however, only older children 12 and older are allowed to testify and express a 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 typically not considered parties in family law cases. Because of this, they have no innate right to testify or 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 devalued or silenced far too often. This is often 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. But such evidence is usually inherently insufficient. Children know the facts of their life with their parents best because they have experienced them firsthand. And only they really know how they feel.
In one case, I took on the representation of a 13-year-old after her parents argued for five years before three different judges and in seven child welfare examinations. My client had never been given permission to testify or be legally protected from psychological and physical abuse.
I escorted her to the next family court hearing while her parents were prepared to fight again. I asked the judge to give the child the first opportunity to speak. “Why?” he asked. “She has 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, I have permanent nerve damage.” It was on that day that she received her first legal protection from abuse.
Some argue that children should never be put in my client’s position because having a child testify against one parent or choose one parent over the other could jeopardize the parent-child relationship. I do not agree. Children should be empowered to tell their truth about parenting abuse. The law should not suggest to children that they lack the innate right to tell someone about their experiences. Abuse already inflicts undeserved shame and silence on children enough. That shouldn’t reinforce the law.
Others argue that children who testify about abuse are unfairly forcing them to “relive their abuse” on the stand. That’s absurd. I was sexually abused as a child. I am now 52 years old. The absence of a witness stand has never saved me from experiencing the abuse again. My child clients, who have testified in family, criminal and civil courts, have all told their stories privately beforehand. When they tell their stories to a judge or a jury, they find it empowering, healing and affirming. It was her first opportunity to control how her life will live after an adult takes that control away.
Some have also argued that children are unreliable witnesses that they could lie to manipulate a desired outcome or be manipulated by one parent to falsely accuse the other of wrongdoing. These arguments ignore two facts. First, at a very young age children are capable of developing the ability to distinguish truth from falsehood. Second, judges do not accept child abuse allegations at face value. Rather, they are adept at seeking corroborative evidence before accepting a claim, including ordering an independent medical or psychological evaluation 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 lead their best lives as much as the rights of their parents.
In her autobiography, “I Know Why the Cage Bird Sings,” wrote Maya Angelou of the abuse she suffered as a young child, she said, “There is no greater torment than having an untold story within you.” In our courts we pretend to 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 just 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 locked inside themselves while an adult preaches their fate in another room?
Mr. Dolces NBC Think piece can be viewed
Originally published by NBC Think, May 27, 2021
The content of this article is intended to provide general guidance on the subject. You should seek expert advice regarding your specific circumstances.
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