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Will My Child Have to Testify at My Divorce Trial?

On Behalf of | Feb 28, 2020 | Divorce

When parents are getting divorced, it can be difficult on their child or children. Suddenly, the child’s home is splitting up and their future seems a little less stable and possibly scary. Some children have preferences as to which parent they want to live with, and sometimes they can express that preference with the judge during the divorce proceedings. However, this is not always the case. So what do judges give weight to when they decide who the child or children shall live with, and will your child have to go to court and testify?

Factors in Child Custody Determinations

When deciding which parent a child should live with the majority of the time after a divorce is a difficult decision that judges do not take lightly. The most important consideration by far is the best interests of the child or children, not necessarily the desires of the parents. But beyond this, it is a decision that requires judges to weigh many factors together to make the best decision:

  • The location where each parent resides: This includes factoring in how far away from one another the parents live, and the practical implications of distance on the parents’ ability to abide by certain plans.
  • Who has taken on the primary child-raising responsibilities in the past
  • The nature and quality of each parent’s relationship with the child
  • Which home would be a more stable environment for the child
  • Which home (if either) would introduce questionable third parties into the child’s life that could have a detrimental effect on him or her
  • Which other parties will the child be living with, and what their relationship with the child is
  • Which parent will work to facilitate a good, strong relationship with the co-parent
  • History of complying or not complying with court orders
  • Attendance at the court ordered parenting class
  • The ability and desire of each parent to provide food, clothing, shelter, and other necessities for the child
  • The love and emotional ties between each parent and the child
  • The fitness of the parent as it pertains to:
    • Mental well-being
    • Emotional well-being
    • Physical health
    • Morality
  • How stable is the environment at each parent’s home
  • Which home provides greater continuity in the child’s life
  • Evidence of physical or emotional abuse by either parent, or someone who frequents the parent’s home
  • The behavior of any person who lives with or frequents a parent’s home
  • The job schedule of each parent
  • The child’s preference if over 12 years of age
  • Any other factors the court deems relevant to the decision

When Would a Child Testify?

As you can see, one of the factors above is the child’s preference if they are over the age of 12 years. So if your child has a preference that they would like to express to the judge and they are 12 years old or older, the chances are good that the judge will allow that child to be heard in court. However, the child’s preference may be examined by opposing counsel or the judge, particularly if it seems that the child has been influenced in any way to state a certain preference.

Rest assured that family law judges have seen it all, including parents who blatantly (and sometimes not so blatantly) use their children to hurt each other throughout their divorce. More often than not, judges can see this undue influence or pressure from a parent in the testimony of a child. And if the judge has any suspicion that the child has been unduly influenced by a parent, the judge will speak with the child in more detail until they are satisfied that they have heard the truth.

In fact, here is a word of caution. If a judge determines that a child has been unduly influenced by either parent to testify untruthfully, the parent that used their child in that way will very likely not get a good outcome as it pertains to custody. Coaching your child to lie in court is a grave mistake in judgement. Do not do it. If you do, the judge will not be kindly disposed toward awarding you significant custody since you’ve shown your willingness to not only lie to the court, but to influence your child to give false testimony.  This level of deceitfulness can only hurt you at a custody hearing, so just don’t do it.

And the rule mentioned above does not necessarily mean that the court can never hear the testimony of children younger than 12. If a younger child wishes to testify as to their preference, the judge can allow them to testify if he or she feels it is appropriate. One thing that must be established – particularly for children under 12 – is that they understand the difference between a lie and the truth, and they must understand the meaning of taking an oath to tell the truth. If the child can establish that they understand what that means, then the judge can allow their testimony. However, judges typically give greater weight to the testimony of older children, and the older the child, the more weight is given to their preference.

Is Child Testimony Ever Mandatory?

There are no absolutes in law. Judges have discretion when it comes to allowing or disallowing child testimony. While not the norm, it is possible that a judge may require a child to testify in extreme cases – for instance, where child abuse or neglect is at issue and for any reason the judge feels it is necessary to hear from the child. So it is possible (but not typical) for a judge to require a child to testify. But it should be stated that most judges will take potential psychological harm to the child into consideration before mandating such testimony. In other words, if the child would be traumatized by being forced to testify, a judge would likely not require it.

Let Us Put Our Experience to Work for You

Divorce is never easy. Allow our caring, compassionate lawyers at Batson Nolan PLC to lessen your burden. We have experience in all aspects of divorce, child custody, and child support, so let us be your guide through this difficult process. Call us today, or contact us online to set up a free consultation in our Clarksville or Springfield office.