Children on the Witness Stand

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Children on the Witness Stand

It sounds like something from a movie – young children tearfully taking the witness stand during their parents’ divorce. Most of the time, this is something parents want to avoid whenever possible. But there are situations in which it may become necessary or useful to your case for your child to testify in court during your divorce.

Children in the Jolie-Pitt Divorce

Angelina Jolie and Brad Pitt are in the midst of a very heated and drawn-out divorce case. The case was complicated by claims of domestic violence against the children allegedly perpetrated by Pitt. Those issues were resolved, and Pitt eventually regained visitation. The drama involving their children continues, however, as Jolie has reportedly filed documents with the court alleging that Pitt perpetrated domestic violence against her. As part of that claim, Jolie has indicated that some of her children can offer testimony in support of her claims. For that to happen though, both Pitt and Jolie need to give permission for them to testify as the children are minors, and their divorce is being heard before a private judge.

It is, of course, incredibly unlikely Pitt would give permission for this not only because of the stress this could cause to the children but because such testimony is likely to hurt his case. Jolie’s attorneys are fully aware of this, but the simple offer to have the children testify is a power play to signal to the court that the alleged domestic abuse actually happened and was so severe and concerning that even the children saw it and could testify about it. Jolie’s attorney, in fact, might be rightfully assuming there is no chance Pitt would ever agree to such testimony and are simply making the offer to try to bolster their case.

Testimony by Children

It is not general practice to have children testify in open court during a divorce. Children almost never have any role in testimony that impacts the issues of property division, child support, or grounds for divorce. In the instances in which children are called to testify, it is most often about child custody and visitation. A child could testify about domestic abuse of or by one of the spouses if they witnessed it, but that is fairly unusual.

Issues with Child Testimony

There are a variety of problems that arise when considering having a child testify in open court. First and foremost is the fact that doing so may not only be frightening for the child but can actually be traumatizing. Having to get on a witness stand alone in front of a judge, lawyers, a stenographer, a bailiff, court clerk, and their own parents and answer questions about how their parents treat them, how they feel about their parents, and other matters which they know will impact the custody arrangement is painful and difficult for any child, no matter their age or their attitude.

Competency is an issue that also arises. While there is no set age at which someone can testify, witnesses are expected to be truthful and must be able to communicate clearly enough to be understood. Children under the age of 12 are generally considered to be unreliable witnesses. It is up to the judge to determine if the child is competent to testify. In general, if a parent truly believes a child’s testimony is necessary, their attorney will file a motion requesting that such testimony be heard.

If your child does testify, the judge will give very strict instructions to the attorneys about the type of questions they can ask as well the tone of those questions, with the goal being to limit the child’s time on the stand and reduce any traumatic impact.

In-camera Testimony

In many states, children are allowed to testify in a private meeting with the judge in their chambers. In some states, each side can submit questions to the judge. In some states, the judge decides on the questions. The testimony may be recorded by the court stenographer but is sealed so the parents cannot access it. If the child has a law guardian or Guardian ad litem (an attorney appointed by the court to represent the child), that attorney will likely be present. An in-camera interview is far less stressful for the child than testifying in open court before both parents and many strangers. However, it still can be upsetting.

Should I Have My Child Testify?

Deciding whether your child should testify in your divorce is a decision that you and your attorney should discuss together. In general, this is only a good idea if your child has information no one else has, and your case would be at a disadvantage without the information. You should consider the following things when making this decision:

  • Does your child understand the difference between truth and lies?
  • Do they reliably tell the truth?
  • How upsetting and stressful would testifying in court be for your child?
  • How confident are you that your child’s testimony would help your case?
  • Does your spouse want your child to testify?
  • Are there other people who can supply the same information as your child potentially might?
  • Does your state have an option for in-camera testimony?
  • How important does your attorney believe your child’s testimony to be?

Some parents come to the conclusion that having their child testify is important for everyone’s future well-being. Others come to the conclusion that it is not something they want to put their child through no matter what the benefits are. There is no right answer and remember that ultimately it is up to the judge whether your child will testify or not.

How to Prepare Your Child to Testify

The short answer to this is don’t! Don’t rehearse your child or tell them what to say, or even ask them what they will say. As carefully as you might try to prep your child about what to say, it’s very likely that the fact that you did so will come out as your child testifies. It is also particularly important that you do not offer your child any reward or incentive for testifying (anything from going out for ice cream after to getting a new wardrobe). It’s very likely your child will mention it, and it will look like bribery.

Instead, all you need to do is explain the logistics of the situation – where they are going, when they are going, who will be there, how long they will be there, and what is expected of them. Do not impress upon them the consequences of their testimony (particularly in a custody case). They should not feel or believe that what happens with the case is dependent upon what they say. Make sure they know that they will be in a safe place where everyone is excited to meet them, and all they need to do is just answer a few questions truthfully.

Don’t go overboard dissecting the difference between truth and lies, because again, you do not want to appear to have coached them. Answer any questions they have about the testimony honestly.

Child testimony is a divorce is always fraught with tension and concerns. Your attorney can help you make the best decision for your family.

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Dror Bikel

Dror Bikel is a Manhattan-based divorce and child custody lawyer. He founded and leads Bikel and Schanfield, New York’s best-known firm for high-conflict matrimonial disputes.

As founding partner of the Manhattan-based firm, Bikel & Schanfield, LLP, Dror Bikel’s 20+ years of trial and litigation experience offers invaluable insight in facilitating settlements, mediating disputes and obtaining superior results for his clients. A recipient of the New York Super Lawyers Award, Mr. Bikel is voted among the Top 5% New York State Family Law Attorneys.

To connect with Dror: 212.682.6222 or [hidden email] or online
To learn more about Bikel & Schanfield: bikellaw.com
To learn more about Dror's book The 1% Divorce: When Titans Clashsuttonhart.com

For media inquiries or speaking engagements: [hidden email]



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