We often hear from many parents who strongly desire for their children to be able to be present in court and to tell a judge how much they want to stay with one parent and not with the other. However, custody hearings typically do not play out this way.
First, many child custody matters are resolved without a hearing. With court calendars being full and litigation being expensive, many parents with custody issues will find that the reality is that their disputes can be resolved through negotiation, mediation, coparenting, or separation agreement. Courts across the state require mandatory child custody mediation in all cases. Thus, the actual percentage of child custody matters that are heard before a judge is low.
However, if there is a custody hearing that will be held, whether or not the children will testify can be an issue that the parties may agree upon ahead of time. This is also an issue that a judge can rule on before the hearing begins. And, each judge has complete discretion as to whether or not he or she will allow a child to testify. Most judges strongly dislike having a child testify; many judges vocalize their strong opposition to children testifying.
There is no mandatory law that a judge must adhere to when deciding if a child should testify. There is no age limit law; child custody rulings apply until a child reaches age 18. There is a public misconception that the older the child, the more likely a judge will allow the child to pick which parent’s home will be their residence. As a general rule, judges will not even consider talking to a child under the age of 10. Some judges may not even consider a child testifying unless the child is a teenager. Judges clearly understand that an exceptional 11-year-old might be more mature than a 13 year old.
However, the answer is not just age based. Judges will consider all information about the involved children. But, again, most judges prefer to avoid having a child testify. Judges realize that making a child testify does put that child in a difficult spot. Child experts agree that having a child testify has a destructive impact on the family and family relationships. Of course, the strain can be between the parent and child, but also between the child and siblings, grandparents, and other relatives.
If a judge does decide that he or she will allow a child to testify, the judge may decide that the conversation with the child will be in chambers (a judge’s office), and no attorneys, nor parents, allowed. Almost all judges ban a child from being present in the courtroom during a custody hearing. Most judges believe that a child observing a custody hearing is detrimental. If the judge will allow a child to testify in open court, the judge will typically allow the child in the courtroom only while the child is testifying.
Also, a judge will want to ascertain that a child understands telling the truth. A judge may consider talking with a child, but in the conversation, the judge may determine that the child does not yet understand the concept of being truthful. Child psychologists note that most children have been trained and taught to tell an adult what that adult wants to hear and expects to hear. Understanding truthfulness is a concept that children learn as they mature.
As one can see, the judge holds all the discretion in this matter. And, if the judge does allow a child to testify, the judge is NOT bound by the child’s testimony and preferences. Judges will consider all the testimony and evidence presented and then decide what they deem is in the child’s best interests.
Parents also need to realize that a judge may consider that one parent’s insistence that a child testify as having a negative impact on that parent’s judgment as to what is in the child’s best interests. Being adamant about one’s child testifying, often reflects poorly on that parent’s power of discernment. Judges are mandated to examine what is in the child’s best interest. A judge will contemplate each parent’s living arrangements and abilities to care for the child; each child’s relationship with each parent; and what is best for the child’s welfare. Judges will also consider the child’s age and child’s needs. The amount of time each parent has available is another factor for a judge to evaluate.
Evidence of these factors can certainly be offered to the judge by the parents and other third parties. A judge will welcome this evidence from someone who is not the child involved. Teachers, coaches, babysitters, therapists, and others are typically better sources to testify in a child custody matter. If the matter in court is a crime, there are very specific laws on the books regarding how and when minor children may testify. These laws especially address if a child is a witness or if a child is the victim. In criminal matters, a child’s testimony may be necessary, but a child’s testimony in a civil custody matter is rarely considered necessary.
