Lawyers Manual - Unified Court System

Litigating Custody and Visitation 67
witnessed and how the domestic violence affected him or her. Such knowledge
may help you better understand the strengths and weaknesses of your case and
assist in fashioning a settlement. If the child is not represented by counsel or the
law guardian gives you permission to speak with the child, he or she can be
interviewed like any other witness. Once the child has been assigned an
attorney, however, it is unethical to communicate with him or her without the
law guardian’s permission. 43
It is advisable to interview the child individually and separately from your
client in a comfortable environment and to ask open-ended questions. The
attorney should assess the credibility of the child’s recollection of any incidents of
violence or the household environment; determine whether the child remembers
any facts your client may have forgotten or omitted; and try to understand the
nature of the relationship between the child and the abuser, particularly what
type of custodial or visitation arrangement the child wishes. While the child
may tell each parent what he or she thinks that parent wants to hear, the child
may be more inclined to give honest answers to you.
If the child has information that is pertinent and unavailable elsewhere,
consider requesting the appointment of a law guardian in order to articulate the
child’s wishes and provide information to the court. The law guardian will act as
an advocate for the child’s position and can also assist the victim’s case by offering
additional witnesses to the court in the presentation of the child’s case. The law
guardian will also be able to cross examine the witnesses for both the petitioner
and respondent and may be able to elicit further information not obtained through
the direct examination. If the batterer acts or speaks inappropriately during
visitation or custodial periods, the law guardian can monitor and report to the
court and make the appropriate motions to protect the child from any harassment
or badgering. Courts will usually give more weight to these arguments if they
come from the law guardian rather than you. On the other hand, a law guardian
may minimize or ignore allegations of domestic violence. (See discussion of
Law Guardians.) So consider all possibilities before requesting the appointment
of a law guardian.
If the child’s wishes are for your client to have custody or for a visitation
arrangement your client supports and the child is a credible and reasonably
articulate witness, move for the child to be interviewed by the judge in the
judge’s chambers, referred to as an “in camera” interview. This type of testimony
offers the court the child’s perspective without the trauma to the child of having
to confront the violent parent. It also spares the child cross-examination by the
batterer’s counsel. 44 Such a motion to the court should be supported by facts
about the harm the child would sustain should he or she be forced to testify in