Though most couples do not realize it, divorce has a significant impact on child(ren). Children have little control over what happens during the divorce, but sometimes a child’s preference will be considered.
There are some aspects of child testimony that is discretionary and up to the Judge, and others that are ruled by statute. Judges are allowed to make orders on testimony that works best for their courtroom and for the child. Below are some factors to be considered when children testify in court.
You might assume a child’s age is the primary determinant of whether or not a child should testify, however age is just a number. Most states do not have a limit on the age of a child that can be allowed to testify in court, California does. If a child is 14 years or older and wishes to address the court, the child shall be allowed to. Shall is a must. If under the age of 14, the court must make a determination on the maturity of the child and whether it is appropriate.
A judge will allow a child who is mature enough to understand the court proceedings and express him/herself in a manner other people can understand through interpretation or directly.
Being mature does not necessarily mean a child can appreciate the impact of his/her answers. The courts will also want to know the child can be calm about situations and react appropriately to different situations in the courtroom. He/she should also be able to differentiate between a truth and a lie and understand their duty to tell the truth in court. Additionally, should be able to handle the emotions that will come with testifying in court in front of their parents.
A child’s preference might not directly affect a judge’s decision in a custody case. However, if the child has a clear preference on what should happen in the custody case, the testimony may be allowed. For example, in a move away case one of the factors the court must consider is the child’s preference.
The judge is not going to allow a child to pick a parent they want to live with without considering the totality of the situation.
A Child’s Best Interest
This is the most important element on which a judge will base the decision of whether or not to allow a child’s testimony. If the testimony places a child in any physical or emotional harm, the judge might prohibit him/her from testifying as there are other alternatives such as appointing minors counsel or having the child interviewed by Family Court Services. If the child is testifying as a percipient witness to domestic violence, the court must allow the testimony regardless of the best interest of the child.
Every case is so different and every child is so different. Having a child testify in court is not an easy decision for a parent to make, if you are struggling with this decisions you have options. Speak with our experienced family law attorneys to determine what is best for your child, call for a complimentary consultation.