If you are getting a divorce, having your children testify in the divorce should be allowed only as a last resort and only in dire circumstances. Family courts do not approve of children testifying because it puts children in the middle between Mom and Dad. The issue of children testifying comes up most often in custody cases.
Best interests of the child
In custody matters, the court uses the standard of the best interests of the child. The court is interested in encouraging and maintaining the child’s mental health, happiness security, and emotional well-being until they attain majority. They assume that in most cases it is in the children’s best interest to maintain a stable and loving relationship with both parents. Insisting that a child testify in open court, may do more to hurt a petition for custody rather than advance it.
When Testimony cannot be avoided
If the situation is such that taking, testimony of the child cannot be avoided or in less common instances when a child asks to be allowed to testify, most jurisdictions do not have the child testify in open court. Testimony of children is usually taken in the Judge’s chambers because that is less threatening for the child. The judge may have a stenographer present to put the testimony on record. Depending on the nature of the testimony, parents are not present during the testimony. Legal counsel may or may not be present. If legal counsel is not present during the child’s testimony, the judge will usually confer with counsel about the child’s testimony before going back on the bench and making a ruling.
The weight that a judge gives a child’s testimony in divorce depends upon the age of the child. The younger the child the less weight it is given. The court also considers the child’s social development and maturity. Some states by stature determine when a child can make a decision regarding which parent to live with. The court can override this choice if it is clear that the parent the child chooses is not capable of caring for the child.
Do you need a lawyer?
If you have to choose where to spend your money in dealing with a divorce, retaining counsel to assist you with custody and property division is usually money well spent. Seek counsel that is experienced in custody matters as well as other aspects of family law.
