There are two main reasons children don't usually testify in custody hearings. For one, testifying can negatively affect the children, especially when they have to say negative things about a parent (whom they love). Also, custody determination is up to the judge and the law, and not the kid. Still, your kid may have something to contribute to their custody case. Here are three cases in which it's advisable and reasonable for a kid to testify:
When Parents Give Contradictory "Facts"
Judges rely on the facts of the case when making custody rulings. Due to the controversial nature of custody hearings, however, parents cannot always be relied upon to tell nothing but the truth. If a judge suspects that the parents are lying (for example, if they are giving contradictory "facts"), then the judge may seek the truth from the child. For example, when each parent claims that they have been cooking dinner alone every day, the testimony of the child may be necessary to break the deadlock.
When the Child Is Old Enough To Choose Their Guardian
In some cases, it might be best to hear the child's preference on the custody issue. This may be the case if the parents seem to be evenly matched and the child's preference may sway the decision one way or the other. Unfortunately, children can't always be relied upon to make good decisions as far as their welfare is concerned; they might not even know what is good for them. The younger a child is, the more they are unlikely to make good decisions. Therefore, a mature or older child is likely to be allowed to state their preference than a younger (immature) one. In fact, some states have minimum ages (in Vermont it is 14) for allowing kids to testify as to their preference.
When the Court Can't Get the Evidence Any Other Way
Lastly, it's also reasonable for the child to testify if the court can't get the testimony via any other means. In this case, allowing the child to testify is rationalized by the fact that the value of their testimony outweighs the harm of allowing them to testify. For example, in a suspected case of abuse where nobody else has the information, it might be necessary to get the testimony from the child. In such a case, the judge will take the child's testimony in chamber – away from the prying eyes of other people.
For more information, talk to a professional like Gomez May LLP.Share