As reported by CCN on May 27, 2021, Brad Pitt was awarded joint custody of his six (6) minor children in his child custody case from actress Angelina Jolie. While that may not seem like a shocking headline, the controversy of this story stems from Angelina Jolie’s claim that the judge did not permit the parties’ children to testify. Ostensibly, she believes the Children’s testimony would have changed the outcome in her favor.
The Pitt v. Jolie case raises the question of when can or should minor children be permitted to testify in their parents’ custody cases? Just like in many things legal, the answer is actually is “it depends.” It depends on the issues, the child’s age and maturity, the facts that are disputed, whether the testimony is about preference or factual issues, and ultimately the particular judge’s views on children testifying in general.
As a practicing family law attorney in San Diego County, I’ve taken the testimony of quite a few children both in the context of eliciting factual information from them, or asking them their preferences about a custody and visitation plan. I’ve also experienced a wide variety of attitudes about children testifying from the various judges I’ve practiced in front of over the years.
Attitudes spanning the extremes of “no child will ever testify in my courtroom” to “what’s the big deal, I hear from children in court all the time.” The inconsistency in judicial temperament in this area and the discretion the legislature has bestowed upon trial judges could be at the heart of what Jolie is complaining about in her case. However, it probably means the Appellate Court will give great deference to the trial judges decision not to hear from Pitt Jolie children. Time will tell on that one.
Back to the question at hand, which is when can or when should children testify in connection with a child custody or child visitation proceeding? The general consensus amongst judges and family law attorneys is “as little as possible.” The family court system understands that shielding children from waring parents’ disputes is usually best for the children.
However, a study found that adults whose parents went through a custody dispute when they were children had a common complaint that they felt voiceless and frustrated with a system that told them who to live with and where to go without asking them what they wanted.
Last revised in 2019, California Family Code Section 3042, requires judges to hear from children age 14 or older who wish to have their voices heard, unless. Unless “the court determines that doing so is not in the child’s best interest.” As we know “best interest” is a wide open standard that seemingly lets the judge do whatever they want as long as they can articulate a cogent reason for doing so.
California has also promulgated a Rule of Court 5.250 to further clarify how a judge should ascertain if a child should testify. Rule of Court 5.250 subsection (c) reads as follows:
Guidelines for determining whether addressing the court is in the child’s best interest
- When a child indicates that he or she wishes to address the court, the judicial officer must consider whether involving the child in the proceedings is in the child’s best interest.
- If the child indicating an interest in addressing the court is 14 years old or older, the judicial officer must hear from that child unless the court makes a finding that addressing the court is not in the child’s best interest and states the reasons on the record.
- In determining whether addressing the court is in a child’s best interest, the judicial officer should consider the following:
(A) Whether the child is of sufficient age and capacity to reason to form an intelligent preference as to custody or visitation (parenting time);
(B) Whether the child is of sufficient age and capacity to understand the nature of testimony;
(C) Whether information has been presented indicating that the child may be at risk emotionally if he or she is permitted or denied the opportunity to address the court or that the child may benefit from addressing the court;
(D) Whether the subject areas about which the child is anticipated to address the court are relevant to the court’s decision making process; and
(E) Whether any other factors weigh in favor of or against having the child address the court, taking into consideration the child’s desire to do so.
Also Read: How to Succeed In Your Child Custody Case!
Where does that leave us in answering our core question of when can children testify in a custody case?
Answer: It’s completely up to the judge.
In my experience as a child custody lawyer in San Diego, whether a child testifies and under what conditions is more a function of who the judge is and how do they feel about children testifying in general, than what the law says. I’ve also been able to correlate the age of children, and the level of conflict between parents to a judge’s willingness to let children testify.
In cases with high levels of parental conflict judges tend to shy away from children testifying since doing so would put the children even more in the middle of parents who are likely already exposing their children to the conflict. In cases where it is apparent one or both parents are prompting / coaching the children to speak out against the other parent is another situation a judge might be less likely to let a child testify for fear the testimony is coerced or tainted and thus of little use.
I’ve experienced judges being most willing to hear from children to settle factual disputes, sometimes involving violence or substance abuse, or from older children who simply prefer one household over the other for various reasons such as poor relationships with step parents, proximity to school or friends, a parent’s lack of availability during visitations, or a dispute over disciplinary choices.
We don’t know why the judge in the Pitt Jolie case decide not to let the children testify because it is a sealed case. However, we know the judge is required to give reasons to reject the older children testifying, that is assuming they legitimately want to testify. Otherwise, the judge simply makes a call on whether testifying is in their best interest.
Whether a child testifies is a matter of age and maturity, for what purpose the testimony is being elicited, the specific facts of the case, and as discussed in this article the specific judge’s general views on child testimony.
If you are involved in a custody dispute and believe your child should testify or the other parent wants them to testify give us a call to discuss your options and how to best handle the situation.