Can My Child Become A Witness in a Divorce Proceeding?

divorce proceeding

After a year or two, or many years of marriage, when nothing ran smoothly, you as one of the couple decided to part ways and get divorced. Now, as a parent, you are thinking if you can have your child as a witness in a divorce trial. And, you may be rightfully thinking so, as your child may have all the relevant information pertaining to yours and your child’s relationship with your spouse.

When it comes to the decision by courts on the issue of a child’s testimony, then you must know and understand that courts are generally reluctant towards the provision of testimony by a child in any divorce case but if the child is mature and competent enough to understand things, the courts will usually give a leeway.

In this blog, I discuss those pertinent points which will help you decide if you can have your child as a witness in a divorce proceeding.

The involvement of your child in a custody case

In a divorce case often there is an issue of child custody and in such a case, irrespective of whether that child prefers to live with mother over father or the opposite way, the court considers the child to have reached a certain level of maturity, and therefore takes into account the opinions put forth by him or her.

As an example, if one of the parents was abusive towards the other parent or consumed drugs during child care, the courts may ask the child if such a thing was true. The child is often made to sit separately from the parents and with the judges in the court chambers so that there is no fear of accurately testifying a parent’s behavior. In essence, in matters of divorce, a child’s opinion is often considered as valuable and most sought-after opinion.

The role of a guardian ad litem and a child custody evaluator

To have your child testify during the divorce trial, a court usually appoints a guardian ad litem and a child custody evaluator both of whom have a more or less similar kind of role to play. An amicus attorney or an attorney ad litem or a guardian ad litem is usually appointed to determine the parent’s behavior at home, keeping in view the child’s best interests. Ths guardian is responsible for conducting an investigation of parent-child behavior and assessing a child’s medical, psychological, and school records.

A child custody evaluator, on the other hand, is appointed only after the court decides that there is a need for a child custody evaluation. This evaluation addresses the opinions, recommendations, and answers to specific questions asked by the court. Such appointments allow for exceptions to any hearsay.

Affidavit of Election

As a parent, you may like your child to testify before the judges in a court so that your child’s preference to live with either of the parents after your divorce can be decided. But, in most jurisdictions, courts allow a child to indicate preference through an affidavit of election if the child is above 13 years of age. The affidavit of election is a sworn-in document that clearly serves the purpose of stating a child’s preference and thus removes the need for any testification.

Testification occurs in private court chambers

When you are interested in having a child say in matters of parent-child relationship during the divorce trial, courts make an arrangement wherein the judges can speak privately with the child in order to eliminate the hassle between the couples. The meeting between the judges and the child happens in such a way that judges can interview the child in private and without the presence of any parent.

However, as parents, you can have your attorneys represent both of you in the judge’s chamber. The judges try to make the child become as comfortable as he/she can be so that there is no fear of reprisal when answering the judge’s questions. The court formalities are also removed before having the child testify in a judge’s chamber. It must be noted that all that happens outside of the courtroom and inside the judge’s office is in the best interests of the child.

Best circumstances for a child to testify

Most of the states in the United States are considered as ‘no-fault’ states wherein no testimony by the child is required to be presented pertaining to separation or divorce. But, as clear as it can be, the divorce cases in which there is an issue of child custody, child support, or alimony, a child’s testimony may prove helpful.

If you live in a state which allows for a ‘fault-based divorce’, you can have your child testify but the pros and cons must be carefully studied before making a final decision to have your child testify. Above all, besides allowing only those children who are old and mature and who fulfil minimum age eligibility to testify, the courts want to make sure the child is not harassed in any way when asked questions by the attorneys.

Conclusion

The aforementioned should be enough to have you guided towards making the right decision of whether to have your child testify or not in your case of divorce.

If you still have a problem arriving at an informed decision and if you live in Pierce County, Washington, you may contact the divorce lawyers at Whalley-Law. Whalley-Law is a firm well-known in Tacoma City for resolving family law cases of divorce, child custody, and more. If you need a free case evaluation, you may contact the divorce attorneys at (253) 565-3209.