Children's Involvement in the Legal Process

When children witness violent or abusive behaviour in their home, they are certainly affected by it; however, from a legal standpoint, it is extremely rare for a child to be called in as a witness in family court. Typically, family court judges dealing with divorce custody issues will let a parent testify about what a child said or did at the time an abusive act occurred, even though technically, the testimony of this nature is categorized as “hearsay” and is therefore inadmissible. Most family court judges make protecting a child involved in a divorce custody case their priority, which is why a parent testifying on behalf of their child is allowed. Read the following article about child witnesses.

If a judge presiding over a divorce custody case decides that your child should, in fact, be allowed to testify, an attorney or guardian ad litem will be appointed to your child. (The term “ad litum” refers to someone appointed by the court to act on behalf of another party who is deemed incapable of representing themselves, such as children. This is discussed in greater detail in Chapter 9.) Often, the court takes child protection during divorce custody hearings even further by closing the courtroom, or having the child testify privately in the judge’s chambers. Because of children’s attorneys, guardians ad litem, research in family relations and complex psychological studies, the necessity for a child to testify has become practically obsolete.

Even when the children are grown and technically adults, asking for this kind of testimony is rarely worth it. Children, especially young children involved in divorce custody battles, can be traumatized by the possibility of testifying on behalf of one parent over the other. The experience could potentially damage them for life.

What if My Child is the One Being Abused?

If a spouse is physically or emotionally abusive or violent towards a partner, more likely than not, that person will become abusive towards their children. Studies have shown that nearly 50% of men who have abused their wives have also abused their children. When a child not only witnesses but is the recipient of violent or abusive behaviour, that child will carry the effects of the abuse into adulthood. The risk for these children is at its highest when the marriage is unraveling, the couple is living apart, and the father cannot arrest his own oppressive tendencies to exert control over his family.

While some men can let go of the rage they experience at the onset of separation, others become even more violent as time goes on. This is often due to their desperate need for control as they perceive their role in the family diminishing. The scenario holds the most potential danger for children. Older children are particularly at risk, as they are often caught in the middle of conflicts trying to shield or protect their mother from injury at the hands of her abusive spouse. Studies also show that daughters are much more likely than sons to be victimized by their fathers. Due to gender, they are more vulnerable to physical or sexual abuse.

This cycle of abuse is tragic, and becomes even more horrible with time. Women who are abused are less able to take care of their children, setting the course for additional problems. Moreover, according to spousal abuse expert Dr. Lenore Walker, the odds of a woman using harsh, physical discipline on her children is eight times greater if she is living in an abusive situation herself.

Abused children exhibit symptoms akin to those seen in children who only witness violence and abuse among their parents. These innocent bystanders suffer extreme psychological problems from actions completely out of their control. It is critical that they get the help they need and deserve.

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: