Should kids testify in custody cases?


In the classic 1979 film Kramer vs. Kramer, mother Joanna Kramer (played by Meryl Streep) abruptly left her husband Ted (played by Dustin Hoffman), forcing him to care for their young son on his own. She returned more than a year later and demanded sole custody. A judge granted her request, based on a now-outdated presumption that it is in a child’s best interest to be with their mother. Ted opted not to appeal because, according to his lawyer, that would require putting Billy on the witness stand.

The legal accuracy of that final point is questionable, and each state has its own policies about children testifying in custody proceedings. But Ted’s feeling that he shouldn’t subject his child to such a situation is still relevant today.

As Hoffman’s character determined, having a child testify should be avoided unless absolutely necessary because doing so only adds to the stress and emotional trauma the child is already likely feeling from the divorce itself.

Still, there are times when testifying may be necessary. For example, a child’s testimony may be needed if there is domestic violence in the home. In those cases, the court may need to hear how violence between parents impacts the child. The child would be testifying as a witness to a specific event rather than testifying as to which parent they prefer to be with.

Similarly, many states want children to testify when they are being abused by one of their parents in a separated household. This is for the child’s own safety, since without the testimony, the abusive parent can more effectively level false accusations that the other parent is lying or engaging in parental alienation putting the child at greater risk of being placed or left in a dangerous situation.

Children may also be called upon to testify when a parent is abusing drugs, acting out due to a mental illness, attempting suicide or failing to feed the child or get the child to school. Again, the child is testifying as a witness to facts and the child’s testimony may be critical for his or her own safety and protection.

Beyond these scenarios, may a child testify as to their preference regarding who they would like to live with? The answer is yes, although as with all family law issues it depends on where you are.

For example, courts in Maryland must consider a child’s preference if the child is old and mature enough to make a rational, intelligent choice. In California, kids 14 or older are specifically permitted to express an opinion in a custody proceeding. For kids under 14, the judge may allow such testimony unless he or she decides it’s not in the child’s best interest. In Florida, a child may not testify in court at all unless the judge determines that it’s both necessary and relevant to the issues.

But there are other ways to enable a judge to consider a child’s wishes. In most states, for example, the court can appoint a custody evaluator to interview all parties separately and report back to the judge about the child’s feelings and concerns. The court may also appoint a “guardian ad litem” to represent the wishes and interests of the child during the proceeding. A judge may even interview the child in private.
Interested in learning more? Call a family law attorney where you live.

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