If you want the court to consider your child’s custodial preference, your child will probably have to testify. You will not be able to tell the court yourself because hearsay rules will generally prevent you from testifying as to a statement your child made to you. There are limited exceptions to this general rule in cases where a child has made allegations of abuse. However, those exceptions are limited in scope and should be properly researched and evaluated well in advance of trial. If you are involved in child custody litigation and are considering asking the court to allow your child to testify, you should evaluate both the legal and practical consequences of such a decision.
Legal Considerations Generally, a child may testify as to his custodial preference. A child’s testimony is usually procured on this subject in one of two ways. First, the child may be questioned by the judge in chambers, with only the attorneys and the court reporter present. This is sometimes called an in camera interview. The attorneys are generally not permitted to share a child’s testimony in an in camera interview with the parents. Alternatively, a child may testify in open court as a witness. No matter what form the testimony takes, the child must be considered to be competent for his testimony to be considered.
The courts have fairly wide discretion in determining the competency of a witness. Practically speaking, I generally look to see if the child understands the idea of “truth” and to see if the child has command of enough words to accurately recount his thoughts and feelings when I make my own informal determination of competency. Judges experienced with young children will often spend a significant amount of time discussing with a child the concept of the truth and whether the child can differentiate between a truth and a lie. Judges will also sometimes spend a significant amount of time discussing mundane topics with the child. In addition to setting the child at ease, a certain amount of “small talk” may help the judge to determine whether or not the child’s vocabulary is sufficient to accurately express himself. In some cases, the attorneys will be permitted to ask the child questions.
The judge may require the attorneys to submit the questions in advance for approval. The questions an attorney asks of your child may relate to the child’s competency and/or his custodial preference. If the judge determines that a child is competent, then the child’s testimony as to custodial preference may be considered by the court. The judge, however, will have discretion in determining the weight to give to the child’s testimony. Generally, the older and more mature a child is, the more weight a court is likely to give the child’s testimony as to his custodial preference.
If you feel that your child meets the legal requirements of competency to testify in a child custody proceeding, you will still need to consider the practical effects of having your child testify. The Emotional Effect on the Child The first practical consideration I believe you should make is whether or not having your child testify or participate in an in camera interview will have a negative emotional effect on her. Imagine how anxious you, as an adult, will be about testifying at your trial. You may be concerned about ensuring that your testimony is truthful and clear. You might be afraid that your statements will be twisted by the other side and taken out of context by the judge. You may be anxious that you don’t forget anything when you are speaking in court.
Your child has all of these concerns and then some. She may be afraid to appear as if she is taking sides in a case. She may be concerned about angering either of her parents with her testimony. She may not want to share her concerns about testifying with you because she does not want to disappoint you. As a parent, you should be sensitive to your child’s feelings about testifying. Encourage her to share any concerns she might have with you and never force an unwilling child to testify in a child custody proceeding.
The Unpredictability of the Child’s Testimony
The second practical consideration you should take into account is the unpredictability of your child’s testimony. Do not assume your child will make the same statements to the judge that he has previously made to you. Often, a child’s testimony will be markedly different than you expect. A child’s statements may be inconsistent for a number of reasons. Maybe he is being pressured or plied with material rewards by the other parent. Perhaps his understanding of the world, including his perception of time, is not the same as yours. You should not rely on your child’s testimony to remain the same over the course of your litigation. Neither you nor your attorney should ever attempt to coach your child to ensure that his testimony is predictable. It is my experience that a child who has been coached is easy to spot and that any evidence of coaching will destroy your child’s creditability as well as your own. Your Judge The third practical consideration which I advise my clients to consider relative to their children’s testimony is whether or not the judge will react negatively to the request. Some judges are very comfortable with children, are adept at eliciting information from children in in camera interviews and give a great deal of weight to a child’s testimony, especially when the child appears to be mature and credible. Some judges, however, do not believe that children should be directly involved with a trial and will look unfavorably upon a party who demands an in camera interview or that a child be called as a witness. Your attorney should know your judge’s opinion on this matter and should assist you in determining whether having your child testimony will do more harm than good.
Making the Decision Once you have consulted with your attorney to determine whether your child’s testimony will be permitted in some form then you must make personal and strategic decisions. In my opinion, the litmus test for child testimony should ultimately be whether you want your child to freely express his opinion to the Court, regardless of the weight the Court will give the testimony and regardless of whether the testimony will be favorable to you. If you want your child to testify only because you believe the testimony will be favorable to you or because you believe that the Judge will have to defer to your child’s opinion, then you may be very disappointed in the outcome.