Will my child need to testify in a family law proceeding?

Judges have many ways to acquire information about the best interests of the children without having children testify in court

Parents who cannot agree about parenting issues may turn to a Family Law Court to resolve their disputes. When the dispute concerns the child’s living arrangements or the amount of time the child will spend in each parent’s home, parents often wonder whether their child will need to testify as a witness in the proceeding.

The short answer is that children almost never testify in court. Nor should they. Parenting disputes that go to court are stressful enough for parents. It would be cruel to expect a child to sit in the witness chair, looking at both parents while trying to decide what to say. Children should never be put in the middle of a parenting dispute.

Fortunately, there are alternatives that allow the court to learn important information without forcing a child to testify.

Parental Testimony

In some cases, a judge can base a decision on testimony given by the parents. A judge can evaluate the sincerity and honesty of parents as they talk about their relationships with their children, their ability to provide for a child’s emotional needs, and their concerns about the other parent.

Testimony of Friends and Relatives

Significant people in a child’s life, including grandparents and close family friends, may have valuable information that they can contribute about the parenting styles of the father or the mother. That evidence can be presented in the form of affidavits and live testimony.

Family Report

A Family Report is prepared by a family consultant appointed by the court. Family consultants are social workers or psychologists who have experience evaluating the relationships of parents and children.

The report provides an independent assessment of the disputed issues. The report discusses the family’s circumstances and recommends solutions to disputes, keeping in mind their need for future care, safety, and any developmental needs the children may have.

Independent Children’s Lawyer

In some cases, the court will appoint an independent children’s lawyer for a child. The lawyer is an advocate for the child’s best interests, not for the child. That means the lawyer exercises independent judgment rather than following directions given by the child.

Considering the Child’s Wishes

When a child is relatively young, a judge is likely to give relatively little weight to the child’s opinion as to where the child should live. Young children are easily influenced by parents and are not always reliable sources of information.

As children become older, a judge is more likely to consider the desires of the child. A teenager may have a strong preference for living with one parent rather than the other, and may have legitimate reasons for having those preferences. A judge is likely to give those opinions some weight, although the best interest of the child is always the judge’s touchstone for making a decision.

If the judge wants to consider a child’s views, the judge might consider what the child told the family consultant or the independent children’s lawyer. In some cases, the judge might want to meet with the child in the privacy of the judge’s office. Rarely will the judge expect the child to testify in court. Judges usually think that parents who compel their children to testify are not acting in their children’s best interests.