Can My Kids Testify in My Custody Case?

I am often asked by my clients if their children can testify in their divorce case. This is turn results in a lengthy answer. It often hinges on the age of the child, and the nature of what the child would testify to.

Before I tell my client their options, I first explain to my client that just because a child testifies or expresses his or her wishes to the court, that does not mean that he or she gets to decide where to live, or which parent to live with. Children are still children, and it is ultimately up to their parents or the Court to decide where they live.

Then, I explain to my client that there may be a way to present to the Court their child's wishes through a third party. This is by far more preferable than making your child testify in open court. Often your child's therapist or teacher may be a good person to testify on your child's behalf. Generally your child's therapist has only your child's best wishes in mind and can accurately present your child's wishes to the Court.

If your child does not have a therapist or a teacher that will testify, another option I may suggest is hiring a Child and Family Investigator (CFI) or Parental Responsibilities Evaluator (PRE) to do an investigation and make a recommendation to the Court regarding parenting time. A CFI or a PRE would interview your children in both your home and your Ex's home as part of their investigation. Then the CFI or PRE would issue a report detailing their investigation and make a recommendation to the Court concerning parenting time and decision making.

Then, if none of the above options work for my client, I may then suggest that we file a motion for anin camera interview of the minor child. A motion for an in camera interview is a motion requesting that the Judge speak to the child in his or her chambers. This generally means that the children would go to the Court and have an informal discussion with the Judge about his or her wishes regarding parenting time. This option is much better than having your child testify in open court, as children should be children, and both parents should want to shield their children from their adult issues.

Finally, if a motion for in camera interview was denied, I would then talk to my client about calling their child as a witness in their case. Technically the child could be called as a witness, but I would talk to my client about how testifying could impact the child's mental health, and if their child was mature enough to handle such an adult task.