There are very few things on which almost everyone agrees, particularly when you’re dealing with feuding husbands and wives, zealous attorneys, and conservative judges all at once. But, really, there’s at least one thing that probably almost everyone would agree on: children should never be asked to testify as a witness in a divorce or custody case.
I’ve had several clients, over the years, ask me whether it would be a good idea to allow the child to testify. In some ways, it may seem like children are ideally placed to offer an opinion on these issues. They have, over the years, seen both parents at their best (and worst) and can sometimes have surprisingly intuitive insights. They may even, in some cases, indicate that they would really like to have the chance to say something to the court or the judge about the case.
In reality, though, it is almost always completely inappropriate to involve a child in a divorce or custody case, even though the best interests of the child factors do include the child’s preference as a factor for determining custody. No matter the age of the child, a child under the age of 18 is still a child, and does not have enough experience or maturity to offer an opinion on an adult issue. Allowing or encouraging a child to testify can cause irreparable damage.
Theoretically at least, children can testify in court. Attorneys are normally very hesitant to call a child as a witness because of the damage it can do to their case. Because judges are usually against allowing children to testify, calling a child as a witness could prejudice the judge against the client, call the client’s parenting abilities into question, and also hurt the attorney’s relationship with the judge.
Ultimately, in most cases, attorneys like to consult a judge before calling a child as a witness, and then let the judge decide whether the child’s testimony would even be allowed. Some judges refuse to allow it under any circumstances, other judges are happy to conduct an in camera meeting with the child (meaning that the judge meets privately with the child in chambers, and does not require the child to testify in open court). It is NOT considered to be in the best interests of the child to allow the child to testify in open court in front of both parents, so very few judges allow it without serious restriction.
Like any other decision you make when you’re preparing a case, you have to perform a cost/benefit analysis. What kind of evidence could you get, and would it be worth it? In the case of calling a child as a witness, the cost can be measured in all sorts of ways—but damage to your case, and the resulting damage to your child should be at the top of your list.