Giving Weight to Children’s Experiences of Domestic Violence through a Client-Directed Attorney

While research shows that domestic violence is a factor in most child custody cases designated “high conflict” , it is also well recognized that proving domestic violence in court presents a major challenge. Victims can make poor witnesses in court. Their presentation may be affected by the trauma they have suffered, resulting in the inability to recall dates and details of violent incidents. Or their demeanor in court may be distant, their delivery flat and unengaged, or “too” angry and emotional.

In general, judges and other family court professionals want independent evidence to corroborate a victim’s testimony. Such evidence, however, is often lacking in cases involving domestic violence. Most victims do not call 911 so police reports may not exist. Likewise, even if the victim did call law enforcement, the perpetrator may not have been arrested, much less convicted. As a result, there is no criminal record corroborating the victim’s testimony. Similarly, when a report is made to CPS, an investigation is unlikely to result in a substantiation unless the child was physically present during the incident of abuse. In this age of AI and photo-shopping, pictures of injuries may no longer carry the weight they once did.

Another factor contributing to the challenge of proving domestic violence is the “pro contact” culture of family court and the valorization of the “friendly parent,” both of which operate to the detriment of the protective parent/victim. As noted by Peter Jaffe, the widely recognized expert on domestic violence, “the long-standing support for the presumptions of shared parenting and rewarding the friendliest parent are on a collision course with our understanding of domestic violence.” With the intensification of this

culture in the last twenty years, some judges and court professionals have become skeptical about the motivation of parents raising domestic violence allegations. Denials and counter-allegations of parental alienation or coaching, regularly made for strategic reasons, are commonplace. When there is an absence of corroborating evidence, it can be exceedingly difficult for the court to determine what occurred and how the child was impacted.

The reality is that the only witness to domestic violence is often the child – seeing or hearing the incident, attempting to intervene, or experiencing the aftermath—e.g., holes in the wall, broken furniture, an injured or depressed parent. To help the court get beyond the allegations, denials, and counter-allegations by the parents, the child needs an attorney to present evidence to the court of their experience, concerns, and wishes-- in ways that also respect the parents’ due process rights, the rules of evidence and the judge’s role as fact-finder.

Notably, the legislatures of ten states have recognized the need for children in private custody cases involving domestic violence or abuse to have their own representative. However, with one exception, the role of the representative is that of a guardian ad litem (GAL) or what is commonly referred to as “minor counsel”: court-appointed professionals who do not directly represent the child but substitute their judgment and recommend what they believe is in the child’s best interests. In a study by the National Council of Juvenile and Family Court Judges, participants identified GALs and custody evaluators as “the professionals least trained about domestic violence of any actors in the civil justice system...while many appear to marginalize domestic violence as a factor with significant import for abused adults and children in custodial outcomes.”

By contrast, the appointment of a client-directed attorney with specialized training in domestic violence gives the child an advocate equipped to understand the child’s experience and concerns so the child’s attorney can then effectively advocate for their wishes. The Standards for Lawyers Representing Children in Child Custody Cases, adopted by the American Bar Association in August 2003, describe the role of the client-directed lawyer for a child. The child’s client-directed attorney is responsible for investigating the facts of the case, e.g., speaking with the child’s therapist, interviewing the parents and other witnesses, and reviewing relevant records from CPS, law enforcement, pediatrician, etc. Most importantly, regardless of whether CPS has substantiated abuse or whether law enforcement was ever called, a client-directed attorney must spend the time necessary to understand the child’s experience of the violence, and advocate for the ultimate outcome desired by the child. A client-directed attorney whose duty is owed to the child alone can help to ensure that the court receives evidence of how the child was impacted by the domestic violence; or in cases where the child consistently denies knowledge of any abuse, evidence that the child was not exposed.

In our experience, children often fear and reject contact with a parent who has caused physical and emotional harm to the other parent, or they seek reassurance that they, and the victim parent, will be safe during future contact with the offending parent. To achieve the individual client’s goals, the attorney for the child will want to consider the following at trial: eliciting testimony about the incidents of domestic abuse and their impact through informed cross-examination of the parents; establishing how the child was exposed to the abuse; with the client’s permission, considering the child’s therapist as a witness to testify about the impact of the violence on the child; using the exceptions to the hearsay rules to present the child’s statements at the time of, and immediately after the event; and, when necessary, preparing the child to speak with the judge in chambers or to testify in open court-- depending on the jurisdiction and age of the child. While some judges may frown upon parents who bring their child to court to testify, a child’s attorney who asks the judge to speak with their client is unlikely to face the same disapproval. Finally, the ability of the child’s attorney to test the evidence presented by custodial evaluators and other court professionals is critical to the child’s voice and views not only being heard but also given appropriate weight.

With client-directed counsel for the child, the court receives evidence about domestic violence from the child’s perspective, leading to more informed parenting plans that prioritize children’s safety. The child benefits from the process of client-directed representation in other important ways. For children who have been exposed to domestic violence, there can be a number of negative consequences including emotional dysregulation, increased sibling conflict, and cognitive and learning delays. Client-directed representation offers an opportunity to leverage and build upon children’s developmental strengths by enhancing their sense of agency, resilience, and self-efficacy, and builds vital protective factors that buffer against adverse experiences for children at the center of “high conflict” custody disputes. Children who participate in decisions affecting their lives experience improved social-emotional competence and reduced feelings of powerlessness—key protective factors for long-term well-being. Client-directed representation can play a critical role in supporting positive child development and provides the opportunity to buffer toxic stress and trauma through meaningful child engagement.