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The Child in Court: a Subject Review

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The Child in Court: a Subject Review AMERICAN ACADEMY OF PEDIATRICS Committee on Psychosocial Aspects of Child and Family Health The Child in Court: A Subject Review ABSTRACT. When children come to court as witnesses, developed, young offenders were not convicted as or when their needs are decided in a courtroom, they face criminals but were found to be, or adjudicated, de- unique stressors from the legal proceeding and from the linquents. This judgment emphasized education and social predicament that resulted in court action. Effective rehabilitation rather than punishment. Juvenile pediatric support and intervention requires an under- courts were gradually adopted by all states.1 standing of the situations that bring children to court and In recent years, the number of children involved in the issues that will confront children and child advocates in different court settings. the court system has increased owing to the meteoric rise in child abuse and neglect cases during the 1980s, the increased number of divorces with dis- hen children pass through the doors into a putes about child custody, and the escalated number courtroom, they enter a formal adult set- of serious crimes committed by children. These in- ting that is designed for the resolution of W creases and the recognition that legal matters involv- often contentious adult arguments. All children are ing children and families need to be addressed dif- anxious in a courtroom, but the setting and the na- ferently than criminal matters or money disputes led ture of the stressors on the child depend on the many states to establish a specific family court with nature of the court proceeding and the child’s role in its own infrastructure and administration. This fam- the process. Three situations typically bring children ily court system addresses all types of cases that into court: child protection actions, contested paren- involve children: abuse and neglect or child protec- tal divorce, and delinquency offenses. A child also tion, divorce, juvenile delinquencies, parentage, might be a witness in a criminal proceeding as the guardianship, and adoptions. Other states may con- result of an abusive incident. Only rarely will chil- tinue to handle family cases by a court structure that dren need to be present for other types of cases, such primarily addresses civil or criminal matters. Pedia- as adoptions or traffic offenses. tricians need to familiarize themselves with the court This statement outlines common events affecting structure of their state and how it works for families. children in the US judicial system and delineates the Children are involved in the US court system in different settings, events, expectations, and sources the following matters: of conflict and stress that children are likely to expe- rience. Key advances in law enforcement techniques, • Child protection cases involve children who are al- investigation of cases involving children, and state leged victims of abuse or neglect. These matters law and judicial policy have improved the ways that include hearings involving the disposition of children participate in most courts. This statement and/or placement of children, as well as the ter- reviews the new policies and procedures and pro- mination of parental rights, if there is a finding of vides guidance for pediatricians who work with chil- child abuse or neglect, including child sexual dren who must become witnesses. abuse. • Some states also include so-called status offenses CHILDREN AND THE TYPICAL COURT SYSTEM in their child protection laws. A status offense, eg, Each state court system makes some provision for truancy, underage drinking, is a crime because of handling legal matters involving children. The legis- the child’s status as a minor. lature of Illinois was the first to recognize, in 1899, • Parental divorce or parentage cases rarely require a that matters involving children need to be handled child to testify; however, a child’s testimony might differently from those involving adults. First, chil- be sought in acrimonious contested cases, in dren are dependent on adults. Children also are de- which there may be multiple opportunities for the veloping emotionally and cognitively and have vary- pediatrician to act as a problem solver to prevent ing levels of understanding. Illinois founded the first the child from unnecessary testimony. “juvenile court,” not a new court with its own ad- • Delinquency cases involve children who would ministration and infrastructure, but a set of rules for have been charged for a criminal act as adults. Illinois county courts that would consider cases of They also can be charged for status offenses. children accused of crimes. After this institution was In all these cases, the juvenile court system uses a process in which the aim is treatment and reparation, The recommendations in this statement do not indicate an exclusive course not punishment. Children, however, are increasingly of treatment or serve as a standard of medical care. Variations, taking into account individual circumstances, may be appropriate. being charged as adults for serious crimes, especially PEDIATRICS (ISSN 0031 4005). Copyright © 1999 by the American Acad- crimes involving acts of violence, and tried in the emy of Pediatrics. adult criminal justice system, where treatment and Downloaded from www.aappublications.org/newsPEDIATRICS by guest on September Vol.104 25, 2021 No. 5 November 1999 1145 reparation may not be available. If found guilty as addition, when children are asked to serve as a wit- adults, children may be sent to adult criminal correc- ness against a family member with whom they might tional institutions. have positive attachments and negative experiences, they are being placed in the awkward position of CHILD PROTECTION CASES: CASES OF ABUSE, “sentencing” a family member.4 NEGLECT, AND CHILD SEXUAL ABUSE This question was recently reviewed by the Na- Child protection cases are under the jurisdiction of tional Institute of Justice of the US Department of juvenile or family court under the parens patriae role Justice.2,5–7 Of the studies published to date, no agree- of the court, the state’s interest in and responsibility ment has been reached as to whether the effect of for the well-being of all children in the state. The testimony on children is positive or negative. All state, recognizing that the parens patriae role conflicts children had high levels of anxiety before testimony. with common law reflecting children as chattel (per- Maternal support of the child witness, if available, sonal property) of their parents, will exercise its au- contributed to improvement in the child’s mental thority with caution. Although no state now recog- health, and, perhaps most important, the emotional nizes parental ownership and unrestricted control of health of most children improved with time regard- children, each state is committed to protecting a fam- less of a positive or negative court experience. ily’s autonomy and privacy and the parents’ right to Pediatricians need to be aware of the possible emo- decide how to raise their children. tional effects of being a child witness in the child In this arena, a child witness may be asked to protection system and be prepared to work with provide factual information to the court that might child protective service workers, other human ser- result in a determination to take the child into state vice professionals, and lawyers to help determine if a custody. Depending on the state, the child may or child should testify and to help find solutions that may not be a witness and will be a party to the protect the child. proceeding only on rare occasion. The child’s case is brought to court by the state child protective agency DIVORCE PROCEEDINGS that files suit against the parents. The child may or In 1994, there were 1 191 000 divorces in the may not be represented by an attorney or have an United States.8 It is estimated that approximately appointed guardian ad litem. Guardians ad litem may 10% of divorces with minor children involve court- be attorneys, or in some courts lay guardians are contested custody. The rate of return to court for used. It is their responsibility to assess the child’s changes in custody agreements for these initially interest and needs and present them to the court on contested cases is quite high. behalf of the minor child; they serve as guardians Divorce proceedings exist to sever the marriage only for the court proceeding. contract between a husband and wife; legal prece- The investigation of alleged child maltreatment dent is traced to contract law. Because children were leads to court action and also may have implications not part of the contract, they are not parties to the for how the court is able to proceed in making its divorce proceeding. The state, in its parens patriae role judgment. Allegations of child abuse are brought by of protecting the well-being and best interest of all the state child protection agency after its investiga- children in the state, has an interest in how the tion. When there has been serious physical harm and parties (parents) provide for children of the marriage for almost all allegations of child sexual abuse, a law as the marriage contract is dissolved. But the state enforcement investigation also is accomplished. expects that parents will make appropriate plans for Many jurisdictions have developed programs to al- their children and will intervene only when it views low child protective service workers and police to do that the children are at risk of harm. When parents a joint investigation, thereby reducing the number of cannot decide, the judge will write an order to pro- times that children must retell their experiences, vide for the children, and the parents are expected to while providing a gentle and supportive environ- comply with the divorce decree.
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