Children Testifying In Family Law Cases

Posted by Leslie ShumakeMar 11, 20220 Comments

      One of the most common statements we hear in family law cases, particularly in child custody cases, is this one:  " I Know That Children Can Decide Where They Want To Live When They Get To Be Twelve Years Old".  This is a classic example in family law of a law that is not as simple as it sounds, and why a person needs an family law attorney to explain the statute, both legally and in the practical world.  It's also a very good example of our belief that experience counts, which I will explain in a bit.

     Part of the confusion in this issue lies in the fact that the rules on children testifying come from case law and statutory law.  For instance, in the "Albright Factors", mentioned in several places on this website, one of the factors in determining who would be the better custodial parent is "the preference of  a child  at the age sufficient to express a preference by law."  This leads to the next logical question, which is, exactly what age is sufficient for the child to express this preference?      The answer to that question is age twelve (12), and this is where the confusion arises.

    As an example, a judge in one of the the jurisdictions in which we practiced forbid any young person from testifying in a divorce or child custody case, no matter his or her age.  I was in his court many times and knew from experience his stand on this matter.  If an attorney has not practiced before that particular judge before, he or she may go into a trial believing that the seventeen (17) daughter of the client is not only going to be a great witness, but a critical witness, only to discover that the Court is not going to allow the 17 year old to testify.   On the flip side, we practice before a Judge who I personally have seen let a child the age of eleven (11) testify.  This is the trap in reverse for an attorney who is not aware of this, because the tendency might automatically assume that the Judge would not listen to the other side's eleven (11) year old.

     The "12 Year Old" rule, as we have learned over the years, is certainly not set in stone, and is in fact, the opposite.   We as experienced family law attorneys can understand some of the logic in both judge's positions.  Our courts have repeatedly made statements to the effect that no child, no matter the age, should be called to testify, absent some allegations of abuse or neglect...and even then does so through a Guardian Ad Litem.  We agree with that sentiment in general, as a young person on the witness stand, basically taking the side of one parent over the other, is bad for the child and the parents.  We believe it's always better to leave children of any age, minors or adults, out of the proceeding, if at all possible.

     Also, as anyone knows who has children, or experience in dealing with children, it doesn't take long to realize that there are 11 year olds out there who are more mature and coherent that some 15 year olds.  If the Judge examines the 11 year old and finds that he or she is competent, and that it is in the child's best interest, then the law allows the Judge to make the decision to allow the testimony. 

     There are two final points I would like to make.  First, it is extremely rare for our firm to allow young people to testify in any family law case where the parties are fighting over custody and/or visitation.   We have done so, but only on those occasions where the best interest of the child would be served by the child's testimony.  In our opinion, as I stated earlier, it is bad for the young person and bad for the parents.  Keep in mind that if the young person testifies, the judge may very well have him or her take the stand as any adult would; in front of the parties, the court reporter, the attorneys and the judge  Testifying in court is an extremely stressful situation for adults, much less young people.  

    Secondly, what your child tells you, again no matter what the age, is not necessarily what he or she tells me as an attorney when I talk to them. The most common example I can think of is this:  Child spends the summer with the non-custodial parent, non-custodial parent comes to my office stating that the child wants to live with him or her and will testify to that.  I set up a second conference, asking that parent to bring the child.  I speak with the child in my office, explain things, including the assurance that I will not break any confidentially.  I let him leave and get the parent back in. Then without, going into detail, tell the client "What the young person said to me is not what he said to you."  If that young person will not say it to me, he or she is certainly not going to say it in open court.   

    Children from six to sixty, generally, just want to keep the peace.  They will be one thing to one parent and another to the other parent.  They will say whatever makes that parent happy at the time, and I can fully understand a parent believing that the child wants to live with them.  In the end, though, I see very few cases where a Judge allows what a young person says to sway his or her decision about custody.  This is the practical world of young people testifying.