Reflecting the dramatic shift in parenting and gender roles, the film was Kramer vs. Kramer. The year was 1979 and the big-name movie stars were Dustin Hoffman, Meryl Streep, Jane Alexander and Justin Henry. The plot was about divorce, custody, and the toll it took on their young son. We speak about divorce and custody more openly today, but there are still many aspects we either consciously or unconsciously avoid.

One of the most difficult questions an attorney can face during a divorce or post- divorce situation is dealing with the victimization of a child. When a child makes a disclosure of abuse by a parent it is most often the other parent who brings the issue to court. It is worth stating the obvious: It is the child’s disclosure of abuse, even though a parent is bringing the issue to court. For this reason, at some point in litigation, it may be appropriate for a child to testify. Remember, child testimony practices vary by state. New York’s law, §343.1, provides [Rules of evidence; testimony given by children]:

“1. Any person may be a witness in a delinquency proceeding unless the court finds that, by reason of infancy or mental disease or defect, he does not possess sufficient intelligence or capacity to justify reception of his evidence.

2. Every witness more than nine years old may testify only under oath unless the court is satisfied that such witness cannot, as a result of mental disease or defect, understand the nature of an oath. A witness less than nine years old may not testify under oath unless the court is satisfied that he or she understands the nature of an oath. If under either of the above provisions, a witness is deemed to be ineligible to testify under oath, the witness may nevertheless be permitted to give unsworn evidence if the court is satisfied that the witness possesses sufficient intelligence and capacity to justify the reception thereof.”