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Children Testifying About Abuse in the
Context of Custody
Many attorneys are reluctant to ever consider allowing a child to testify in a
matter. In this Family Law column, Toby Kleinman and Daniel Pollack
discuss various considerations that factor into the decision.
By Toby Kleinman and Daniel Pollack | New York Law Journal
February 21, 2020 at 12:45 PM
Toby Kleinman and Daniel Pollack
Reflecting the dramatic shift in
parenting and gender roles, the film
was Kramer vs. Kramer. The year was
1979 and the big-name movie stars
were Dustin Hoffman, Meryl Streep,
Jane Alexander and Justin Henry. The
plot was about divorce, custody, and
the toll it took on their young son. We
speak about divorce and custody more
openly today, but there are still many
aspects we either consciously or
unconsciously avoid.
One of the most difficult questions an
attorney can face during a divorce or
post- divorce situation is dealing with
the victimization of a child. When a
child makes a disclosure of abuse by a
parent it is most often the other parent
who brings the issue to court. It is
worth stating the obvious: It is the
child’s disclosure of abuse, even
though a parent is bringing the issue
to court. For this reason, at some point
in litigation, it may be appropriate for
a child to testify. Remember, child
testimony practices vary by state.
New York’s law, Section 343.1,
provides [Rules of evidence;
testimony given by children]:
“1. Any person may be a witness in a
delinquency proceeding unless the
court finds that, by reason of infancy
or mental disease or defect, he does
not possess sufficient intelligence or
capacity to justify reception of his
evidence.
2. Every witness more than nine
years old may testify only under oath
unless the court is satisfied that such
witness cannot, as a result of mental
disease or defect, understand the
nature of an oath. A witness less than
nine years old may not testify under
oath unless the court is satisfied that
he or she understands the nature of an
oath. If under either of the above
provisions, a witness is deemed to be
ineligible to testify under oath, the
witness may nevertheless be
permitted to give unsworn evidence if
the court is satisfied that the witness
possesses sufficient intelligence and
capacity to justify the reception
thereof.”
Therefore, an attorney should not
assume a court will absolutely permit
a child to testify. To do so may
require the court’s permission. It is
wise to first decide whether or not the
child’s testimony would be helpful to
the client’s case to protect the child.
Many attorneys are reluctant to ever
consider allowing a child to testify for
two principal reasons. First, they
don’t want to be accused of putting
the child in the middle of a
disagreement between two parents.
This is important to consider, but that
concern needs to be balanced with the
fact that if the child is abused by a
parent, it is the parent who has caused
the harm by abusing the child.
Further, these cases engender attacks
by the other parent regarding “Parent
Alienation.” The reporting parent then
risks losing custody of the child
instead of protecting them. If there is
a therapist involved with the child, the
therapist, as a mandated reporter,
must report the abuse, and should be
prepared to write a report and testify
to protect the child if necessary. But a
child’s testimony may reinforce and
enhance the therapist’s testimony.
The second reason attorneys hesitate
to call child witnesses is that courts
often seek evaluations of children.
This allows a professional to give an
opinion about whether a child was
abused. If a quality examination is
performed, it can possibly spare the
child the need to testify. That said,
there is a controversy about evaluator
bias in actually protecting children.
There is nothing as compelling as
hearing children of appropriate age
tell their own story. This may be
especially true in contrast to an
evaluator who did not definitively
find the child abused, and where the
other parent denies the abuse and then
attacks the partner as raising abuse as
an attempt to alienate the child.
Therefore, if the court knows an
attorney plans to call a child as a
witness it could stop the evaluation
before it begins, which can remove
some controversy, and may actually
decrease litigation.
How does an attorney decide how to
handle this kind of a situation? Tread
carefully. There is no need to
exacerbate any anxiety a child may
already have and thereby cause
further trauma. The American
Professional Society on the Abuse of
Children (APSAC) has guidelines for
interviewing children. One way to be
careful is to use their guidelines for
interviewing as a template for
conducting a direct testimony. An
attorney can ask even the court to
limit leading questions on cross
examination.
In assessing a child’s credibility as a
witness, consider these issues:
1. Honesty: Is the child able to
convey their story accurately,
fully, and consistently? Talk to
a child’s therapist. Have an
appropriate person tell the child
they may be called to testify.
2. Might the child refrain from
disclosing embarrassing
information? This is a reason
to consider waiving privilege
and allow a therapist to testify
if a child has disclosed to their
therapist, even if there was a
separate disclosure to a parent.
3. Communication and cognitive
skills: Is the child able to
understand the opposing
attorney’s questions, including
complex questions that may be
challenge the child's cognitive
ability? Is the child able to
speak plainly? Does the child
have a convincing demeanor?
Does the child appear
confident?
4. Memory: Is the memory of the
child complete? Was their
memory compromised in any
way? If so, does it matter? Why
or why not?
One of the concerns with any witness,
including children, is that witnesses
can become robotic when repeating
their story. Consequently, children
may be disbelieved because they use
similar language in repeating their
story, even when, in fact, they were
abused. How an attorney questions a
child and evokes emotion may be
critical to credibility of the child
witness.
If there is a court-appointed
assessment, you may be entitled to get
an additional assessment with an
expert of your own choosing, but that
strategy potentially pits a trusted
court-appointed expert who the court
may considers neutral against
someone who may be considered
partisan. A child’s testimony, on the
other hand, will stand of its own
accord.
Depending on their age, most children
know that telling the truth is
considered a good thing to do, and
lying is frowned upon. A more subtle
concept is to understand that, under
certain circumstances, they are not
just expected to tell the truth, they are
obliged to tell the truth.
Sometimes experts accuse children of
lying about abuse at the behest of the
other parent. The attorney must find
an alternate way to get the child’s
disclosures before the court. That may
be the opportune time to call even a
very young child to the stand to tell
their story. If the other parent objects
to their own child’s testimony, the
attorney can suggest to the court that
the parent’s objection may stem from
an ulterior motive.
The decision to allow a child to testify
should be made between the attorney,
parents, and possibly the child as
well. It should not be made hastily.
The key factor is the long-term best
interest of the child.
Toby Kleinman, a New Jersey
attorney and partner at Adler &
Kleinman, has litigated domestic
violence, child custody and abuse
cases, and has been a consultant in
cases dealing with domestic violence
and child abuse in over 45 states.
Daniel Pollack is a professor at the
School of Social Work at Yeshiva
University in New York. He has been
an expert witness in more than 30
states. They can be reached at
toby@adlerkleinman.com and
dpollack@yu.edu, respectively.
This column is written for general
informational purposes only and
should not be construed as NY-
specific legal advice.