Kids as Witnesses in Virginia Custody Case

Posted on Aug 25, 2017 by Katie Carter

Custody cases are messy, and sometimes it really starts to feel like anything goes.  Allegations fly back and forth, and it quickly becomes a battle of he said/she said.  Parents understand, usually, that it’ll be difficult for a judge or a guardian ad litem to really get to the meat of the case because there are so many different allegations.  They spend a lot of time trying to figure out what the best, most effective way would be to cut straight to the heart of the case—to get at the actual, literal, provable truth.

Aside from the fact that truth is very difficult (if not possible) to achieve in a custody case, the methods of determining what the truth is vary dramatically from case to case.  One of the things I hear all the time, though, is this question: Can my kids testify in my Virginia custody case?

Moms come in on all sides of this issue.  Some want the kids to help prove what a good mom they are.  Others are terrified that their child’s father will bring the children into court, with no regard for the potential damage caused.  Either way, whether mom is for or against the child testifying, the point often comes up.

A lot of times, I hear, too, that the kids want to testify.  I can understand feeling that way; it might be empowering, especially as a child, to have an opportunity to express a preference.  As a kid, there’s very little that you can control, so feeling like you have the opportunity to say what you think (and have at least the illusion that people are listening to you) would be nice—in some ways.  In others, of course, it could be really damaging, and I’m not entirely convinced that a kid can truly understand all the feelings that would come from testifying in court.

Can a child express a preference in Virginia?

Before we even consider whether a child can testify in a Virginia custody case, it’s most important to deal with a bigger issue – can a child even express a preference for a particular parent in a Virginia custody case?  (After all, what point would there be to bringing a child to court if it wasn’t to have the child say something about how he or she prefers mom or dad?)   Many courts allow children to testify regarding their preference; some courts even have a specific age at which a child is allowed to testify.  In Virginia, though, there is no specific age; in Virginia, we look at the age, maturity, understanding, and experience of the child.  There can be, after all, a very mature 14 year old who is capable of weighing the advantages and disadvantages, and there can be a very immature 14 year old who wants to live with the parent who’d allow him to play more video games.

In Virginia, the only time a child can FOR SURE express a preference for custody and visitation is when they’re over the age of 18—of course, by that point, there is no such thing as custody and visitation, because the child is no longer a child.   It’s possible a child could express a preference, but it’s not a foregone conclusion.  Children are actually relatively rarely relied upon in Virginia custody cases to give a preference, though that’s not to say that their wishes are completely ignored.

When a child testifies in Virginia

It is possible that a child could testify in Virginia, though this doesn’t always happen.  (In fact, it’s relatively rare.)  There are a couple different ways this can happen.

In camera

Most times, when a child testifies, the judge will interview the child in camera.  This means that the judge will talk to the child privately in chambers, rather than requiring the child to testify on the stand in front of a live audience (probably including mom and dad). This is supposed to help ensure that the child feels more comfortable and able to speak his or her mind, and remove the intimidation factor of having to speak in front of their parents.  Sometimes, a child really, really wants to testify (or is needed to testify), and the court uses in camera interviews as a way of protecting a child from potential damage.

On the stand

Children can testify in court on the stand, if necessary, too.  This is generally regarded as a last resort, because it’s stressful (even for adults!) to testify on the stand.

Guardians ad litem

Of course, just because a child isn’t relied on to provide testimony in court doesn’t mean that their preferences don’t count, or that their opinions aren’t admissible in court.  In many custody cases in Virginia, Guardians ad litem are appointed to represent the children’s interests to the court.  In lieu of the children being present to testify, the Guardian ad litem interviews the child, conducts home visits, and otherwise educates him or herself so that he or she can make a recommendation to the court regarding custody and visitation.  Guardians ad litem aren’t perfect; in fact, many people have a decidedly negative view of them and their role in custody court proceedings.  S

till, it’s another way to ensure that a child’s preference is heard in custody cases. Attorneys are, in general, leery of calling children as witnesses.  Courts typically take a dim view of children being involved in this way (for one because they’re not reliable or of sufficient age and understanding to truly have a preference) because of the potential for long term damage.  Whether the court respects the child’s preference or not, it sets up a very damaging internal conflict in the child.  Have they hurt their parents?  The marriage?  Their family?  The potential for a child misunderstanding the power of his or her role in a case is huge, and, as a result, attorneys don’t like to call children as witnesses.  (I know I personally don’t want to be an attorney with a reputation for putting on my case without regarding to the lasting damage I might be causing!)

If you’re wanting to use your child as a witness or prevent your child’s father from using the children as a witness in your custody case, your best bet is to talk to a Virginia custody lawyer about your options, and figure out how to move forward from there.  For more information, or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office  a call at (757) 425-5200.