Child's Testimony in Custody Cases

Child custody cases can be emotionally draining for even the most mature and level-headed adult. If custody is contested, damaging or embarrassing evidence can be made public, and the courtroom climate can become electric. The last thing you want to do is expose your child -- the focus of the case -- to such an emotionally exhausting environment, and in most cases you should take every portion inherent to protect your child from this kind of unpleasantness. However, children are occasionally called upon to testify; sometimes it is unavoidable, and it can even be to your child's benefit.

There is no established age at which a child may or may not testify in a custody case, and distinct U.S. States supervene distinct guidelines in this regard. Obviously, the older a child is, the more likely a judge will be to take the child's thought or preference into account; a child's thought may begin to carry some weight with a judge at age twelve or thirteen. If a child of this age or older has a clear preference as to either he or she wishes to live with mom or dad, some states will allow the child to sign an "affidavit of preference" and present this affidavit to the judge. The judge then will have substantial latitude in how much weight to assign to such an affidavit, relative to other evidence presented before the court.

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Most important, a child should not be pressured into signing an affidavit of preference, or expressing a preference in some other, more direct way. The child should be permitted to present an affidavit or verbal testimony only if he or she for real volunteers to do so, and even then only if all parties agree that that child's testimony will have some sure bearing on the case. A judge must considered equilibrium two factors. First, forcing a teenager to live in one home when he or she clearly prefers to live in an additional one can lead to more serious family problems, and hearing the teenager out may be to everyone's benefit. But second, a judge must be meticulous not to place a child in a position where he or she must right on select one parent over another. These two factors are contradictory, and insofar as each custody case is unique, a judge must considered weigh all the evidence and options before choosing how to proceed.

The next step up, in terms of a child presenting testimony, would be calling the child in to speak conspiratorially with a judge in chambers. Attorneys and parents are ordinarily excluded, so the child can feel free to speak for real without fear of displeasing one or the other parent; if attorneys are present, they are barred from sharing the child's comments with either parent. However, the data presented in chambers might not remain confidential; in fact, if the child's comments in chambers substantially sway a judge's eventual decision, they may become part of the record.

The most direct way to receive a child's testimony is to introduce the child as a study before the court. If the child is directly questioned by either or both sides' attorneys, the judge may require the attorneys to submit their questions beforehand for approval; questions commonly concern a child's competence, and a child's custodial preference. The judge will have final say in how much weight should be given to a child's testimony; the testimony of older and more mature children, obviously, will be given more weight.

The judge, also, will spend time determining the competence of a child. Some judges will effort to glean a child's comprehension of the thought of "truth": either the child can differentiate in the middle of a true statement and a lie. Judges may also effort to gauge a child's vocabulary level, to decree either the child is able to effectively express himself or herself. This kind of "testing of the waters" is often done through mundane small talk, which has the added benefit of setting the child at ease.

In the end, a judge recognizes that a child's testimony can be unpredictable; a child may say distinct things to each parent, to the judge conspiratorially in chambers, and to an open court. This may be a supervene of a child's wishing to please all parties, or may simply be a reflection of the child's own conflicting feelings. In any case, if you believe your child may wish to testify but you have strong reservations about it, be sure to express your doubts to the judge, either through your lawyer or directly, depending on the circumstances. A courtroom touch will likely have long-lasting emotional effects on your child, and your original accountability as a parent in these cases is to protect your child as much as inherent from emotional trauma.

Child's Testimony in Custody Cases

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