The Child’s Preference and Testimony in Court

Will Your Child Testify in Court?

I want to touch briefly on how the child will actually testify. Because this can be very scary for some parents, and it can be traumatizing for children to think about.

Children can take the stand and testify in court, and the Judge has the ability to decide whether this is a good idea or not. If the Judge thinks this is a bad idea, then he or she won’t allow it. Generally this is something that is worked out prior to your day in court. It’s something that the lawyers will negotiate. The Judge may even make an order or ruling on whether or not the child is going to testify prior to you actually arriving in court. The child can actually take the stand and testify.

Another way that the child can testify is in chambers. The Judge can invite the child back to chambers. Neither attorney can be invited to that, it can be something that the child just does with the Judge. They can have a casual and informal conversation about the issues that have been presented in the case. And the Judge can get an idea from the child about what’s been going on.

Don’t think that if your child is going to testify, it has to be that he’s going to testify in court in front of both of you and be traumatized by this experience. The child can also testify in chambers.

Can Your Child Influence the Custody Decision?

Another factor that we’re going to talk about is the child’s preference. We get asked this question all the time. “My child will definitely say that he wants to stay with me, he doesn’t like his father, he has a bad time when he goes to Dad’s house.” We hear our clients explain this to us all the time.

What I’ll do is tell you kind of how the Judges approach this. We don’t have any law that says that the child’s testimony can be heard at a specific age, or when the child’s preference will matter. Judges are given complete discretion when it comes to the child’s preference.

What we have seen is that around ages 10 to 12 is when the Judges start to become more inclined to give some weight to that child’s testimony. And that’s not to say that whatever your child says goes, with regard to custody, but the Judges will believe that a child can start to make a more mature decision. That’s when the child’s testimony may become a little bit more important.

It’s going to really hinge on the credibility of the child, and their ability to make a mature decision. It’s never going to be a dis-positive factor. It’s never going to be that your child’s testimony alone is enough to completely cut off the other parent’s custodial rights, or to make a huge impact on the case. It’s another one of these factors that the Judge is going to consider.


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