Family Law Watch: Child Testimony in Divorce

In litigated custody battles, parents may be tempted to have their minor child testify at trial in the divorce proceeding. Before a decision is made to allow a child to testify, parents should consider the following:

1. Is A Child’s Testimony Necessary? Parents must consider whether a child’s testimony is relevant and necessary. Can a child’s testimony help the judge understand the circumstances in the home? Is a child’s testimony relevant to a disputed issue in the case? In California, a court will allow a child fourteen (14) years or older to testify in divorce proceedings involving custody issues, unless the testimony would not be in the “best interest” of that child. This doesn’t mean a child under the age of fourteen (14) cannot testify. The court may consider allowing a child under fourteen (14) to testify if the child is of sufficient maturity. Generally , judges frown upon a child testifying in court during divorce proceedings. A parent should consider allowing a child to testify only if there are difficult issues that can best be addressed by having the court hear directly from the child. Often, a child’s statements and preferences can come in indirectly through a child therapist or minor’s counsel.

2. What Are The Long-Term Effects On A Child? Parents should consider the long-term effects testifying will have on a child. Allowing a child to testify will undoubtedly affect the relationship dynamic between parents and child. If a child is asking about testifying, determine why the child is expressing an interest. Parents must ask hard questions and examine the reasons behind a child’s interest in testifying. Parents also must consider whether a child, who is asked to testify, will be negatively affected. Consider the emotional and psychological effects on a child.

Regardless of a parent’s decision to allow a child to testify, this decision should not be taken lightly. The long-term psychological effects on a child may not surface for some time. The focus should always be on the best interests of the child.