Parents often call my office wondering whether their child can testify in a family law proceeding. The law technically allows it, but most judges are reluctant in allowing a child to do so.
A concern that many judges raise at the outset is the emotional and psychological toll on the child testifying. This then raises the question of how the testimony of a child will be brought before the Court.
Guardian ad Litem
A Guardian ad Litem (GAL) is a Court appointed person whose sole purpose is to determine the best interests of the child. The Guardian ad Litem will seek out information from a variety of sources (e.g., children, parents, observations) and then make a recommendation to the Court. While this is not a child’s “testimony” in the traditional sense, it prevents exposing the child to the emotional hardships of testifying, but still provides the Court with information that the child may hold. A GAL is most often used in cases where there is alleged endangerment to the child.
This is similar to a Guardian ad Litem, except it is a hired professional. When there are parenting time or custody disputes that may involve a child, parents can opt to hire a mutually agreed upon custody evaluator. This person, like the GAL, may interview the child in order to provide a full recommendation to the parties. This recommendation could then be used in Court to alert the Court, at least in part, to what a child has to say.
Interview the Child in the Judge’s Chambers
The Judge may also opt to interview the child in the court chambers. Sometimes this is done with the attorneys, but not parents, present. The judge may also allow the attorneys to submit questions to ask the child. The Court may permit this in order to relieve the child of the stress of testifying in open Court and in front of his/her parents.
Testifying in Open Court
Sometimes a Judge will allow a child to testify in open Court. The child would be sworn in and the attorneys involved would be able to pose questions to the child. The child would have to answer the questions in front of his/her parents and everyone else in the courtroom (e.g., public, court reporter, etc.).
It can be a difficult path to pursue to bring a child into litigation. Not every option outlined above may be the appropriate path. In fact, a parent may fare better in Court to leave a child out of the mix entirely. It depends on the ongoing circumstances. If the parents simply want a way to include the child in the process, there are collaborative processes such as child inclusive mediation that allow the child to participate but in a less stressful environment.
If you are unsure about how to proceed, or simply have a question, please, contact us today to schedule your free consultation. You can call me at 952-800-2025 or reach out via our online contact form.