June 29, 2019|
Children are allowed to testify at trials, even divorce trials. However, this is something that you want to avoid at all costs. It is always best to avoid putting your child in the middle of a dispute between you and your spouse. If this can’t be avoided, there are ways to allow your child to have a say in the custody or visitation matter without putting them on the witness stand.
There Are Other Options That Can Relieve Your Child From the Stress of Testifying in Court
Instead of having a child give testimony, a judge may appoint a lawyer. This lawyer will then relay the child’s opinions and preferences to the judge. This is done when a child is too young, or a judge determines that it is not in the child’s best interest to testify in court.
A child’s opinion can also be obtained by having the child speak to an appointed child custody evaluator, an investigator, or an appointed mediator. When one of the above methods is used, a report containing the child’s concerns and preferences will be generated. This report will be submitted to the court and made available to the parents and attorney. However, it will be marked confidential, meaning the report will be sealed in the court file and cannot be kept by either party.
What to Expect If Your Child is Going to Testify in Court
Sometimes the testimony of a child is needed. California Family Code Section 3042 allows a child 14 or older to tell the court their preferences in a custody or visitation matter unless the court determines that it would not be in the child’s best interest. When a judge determines that a child is old enough to give testimony, there are different ways for the child to be heard. A judge may speak directly to a child either in open court or privately in chambers.
If your child takes the stand, both attorneys will be able to ask questions. The judge will usually require the attorneys to use more restraint then they would when questioning a typical witness. If the judge wants to interview your child in chambers, the attorneys can provide the judge with questions that they would like the judge to ask.
Parents are not allowed to be present. Attorneys sometimes are. The court attempts to make the children as comfortable as possible in this difficult situation so they can speak candidly about their parents without fear of reprisal.
A child may state that they want to live with one parent over another. Even if a child does not give a direct preference, they can give the court information as to which parent does more of the parenting duties. A child may be able to give insight into whether a parent has a substance abuse problem or another type of parenting concern.
Even when it is absolutely necessary to have your child’s input in your divorce matter this should be handled with care. Don’t hesitate to contact an experienced family law attorney for help with these challenging matters.