December 14, 2016Author: Grant Moher, Esq.
December 14, 2016Author: Grant Moher, Esq.
One of the biggest dilemmas that both family law attorneys and parents face in custody cases is whether a child should testify in the custody trial. Some parents want to shield their child from the court process regardless of the circumstances, while others want to give their child a voice – particularly if the child wants to be heard. Let’s look at some things to consider when this issue pops up:
In custody cases, trial courts have a list of factors they must consider in determining what is in the “best interests of the child.” These factors are listed in §20-124.3 of the Code of Virginia. Factor 8 instructs the court to consider the “reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference.” A judge, after examination of the child or hearing evidence about the child’s age, maturity, and intelligence, has the discretion to decide whether the child is competent to testify.
So then, when is a child of “reasonable intelligence, understanding, age, and experience” to express his or her preference to the Court? There is no set of specific criteria with respect to age – no “magic number” that a child must reach before a court will listen to that child’s testimony. Obviously, the older the child is, the greater the possibility that a judge will allow the child to express a preference.
Case in point: in practice, I have had a judge refuse to even examine a 12 year old (which I believe was an incorrect decision), and another judge basically allow a 16 year old to break the tie in an otherwise dead-even case. For what it’s worth, from practice and from legal research, the “iffy area” (i.e. where it is hard to predict if a court will allow a child to express a preference), is around 12 or 13, though again, it is fact and judge dependent. Any younger, and the safe money is on a judge not allowing the testimony (although there is a reported case where a judge broke the tie between two fit parents by honoring the wishes of an 8 year old!). Any older, and it’s easier to assume that the child will be heard.
Age and maturity do not necessarily go hand-in-hand. Indeed, the same judge who finds a 9 year old mature and intelligent enough to express a preference may not entertain the testimony of an immature 14 year old of below-average intelligence.
The test for maturity is essentially whether the child has a sense of moral and legal responsibility, and has intelligent views and wishes on the subject. A 15 year old who wants to live with dad because dad lets him stay up later, eat more junk food, and watch R-rated movies, would likely be deemed too immature to have intelligent views and wishes on which parent he should primarily reside with. An 11 year old who wants to live with dad because dad helps more with homework, listens to the child, and is more involved with the child’s activities probably passes the maturity test.
Beyond the child’s age and maturity, a judge will also consider several additional factors besides the child’s age and maturity. For example, courts are instructed to also consider the matters to be brought forth in child’s testimony (i.e. is the child simply testifying as to his or her preference, or is the child a significant fact witness as well?), the level of acrimony between the parents, and the likelihood of improper influence by one or both parents on the child’s testimony.
Based on an evaluation of those factors, the judge then determines the best way of receiving evidence. The judge can require a child to testify in open court in front of both parents, which certainly can be traumatizing for any child. Alternatively, and probably preferably, a judge can interview the child in the judge’s chambers. If the judge elects that method, the conversation between judge and child must be transcribed.
In my experience, most judges prefer to keep children out of court. Indeed, the attorney and parent who call a child to testify risk drawing the ire of a judge who thinks that a court is no place for children. However, some children practically beg to be allowed to tell the judge their preference. For those children, it may be even more traumatic to keep them from testifying, as they might feel unheard and voiceless.
Unfortunately, there are situations where it is hard to avoid calling a child witness. If the parties have two versions of material events, sometimes the child is the only other witness to the events. If a child saw, heard, or knows something that cannot be presented to the court through some other evidence, that child’s testimony may be unavoidable.
The decision to call a child witness to testify in court is a major decision that can have a “make or break” impact on a case, and is not one to be made lightly. An experienced family law attorney can help make that decision easier.