Will my child have to testify in Virginia?

Posted on Jan 16, 2023 by Katie Carter

In almost every case where child custody is a component – which can be either a petition or a modification of child custody, visitation, and/or child support at the juvenile court level, or a divorce where there are minor children involved – the mothers tell me that their main concern is their children.

On some level, it is what it is. Divorce can be trauma for children; we all know that. Though it doesn’t have to be traumatic, in cases where the parents are combative, where there’s parental alienation, where there’s abuse or neglect, where the children are used as intermediaries, and so on, damage to the children can certainly occur.

While we always try to help minimize the damage to the children, it’s not us – as in, the divorce or custody lawyers – really driving that train. It’s the parents who are making choices, both about how they’ll parent through their divorce or custody case, and how they’ll coparent or parallel parent with their child’s other parent.

It’s not easy. We’re all human. We all make mistakes. And, sometimes, it seems like you’re in uncharted territory. How do you know what the best choice is, or even feel like you’re in a position to make the best choice possible when the world around you is falling apart?

Parents don’t want to damage their children. Divorce doesn’t have to damage the children. There are a variety of studies that have shown that parents who divorce – happily divorce, that is – are less likely to harm their children than parents who stay unhappily, miserably married. But a miserable marriage or a miserable divorce? Well, I don’t know if there are studies on that, exactly. And, in any case, I am not a child psychologist.

But what I am, though, is a mother. And a family law attorney. And, from my perspective, there are things I can do that can help to minimize the damage on the children – and I certainly do my best, in every single case, to do those things. Whether the parents are able to put away their own feelings in order to minimize the damage on the children for their part is something that I can’t control. I do try to influence it, but – well, some things are just out of my wheelhouse.

One of the questions I get about custody cases is often this:

Will my child have to testify in Virginia?

We could be talking about any number of cases. A divorce case, a custody case, an abuse case – whatever. Is the judge going to call the child as a witness, and allow attorneys to question – and, worse, cross examine – a child?

Is the judge going to expect the child to be able to articulate a preference for which parent they’d rather live with in front of those same parents?

Is the child going to have to detail the abuse she has suffered in open court?

The answer, in most cases, is absolutely not.

Though it is theoretically possible to call a child as a witness, most judges will not do so. In the cases where I’ve heard of it happening (admittedly, it has not happened in one of my own cases), it’s usually because the child is older and the child wants to testify.

Should parents – and attorneys – let older children testify? That’s a different question entirely, and one to which I would argue that, no, the child should not testify. The potential for damage is too great.

Ultimately, custody, visitation, and child support decisions are made for children – under the age of 18 – in the Commonwealth of Virginia. Why? Because they’re children, and not capable of making decisions so big for themselves, or even necessarily for anticipating the issues that those choices create. Children have to be protected from that damage, especially when they don’t have the capacity to understand that their decisions could have vast, far reaching, and unintended consequences. Instead, we use the ‘best interests of the child’ standard to make custody determinations.

Most judges don’t want to be the kind of judge who’d call a child as a witness, and most attorneys don’t want to be the kind of attorneys who’d list a child as a witness and try to call them. Most of the time, it’s not even a question – the child will not testify.

This is especially true in the case of a young child, but is often still the case even for 15, 16, and 17 year olds. It’s just not appropriate.

What about the child’s preference? Doesn’t that matter?

A child’s preference isn’t really a guiding factor here. It’s possible that the child’s preference would be respected, especially if that child is of suitable age, discretion, experience, and understanding to express a preference. “I like dad’s house because he’ll let me eat ice cream for dinner and stay up late playing video games,” is not a valid preference.

There’s no age, in Virginia, where a child’s preference automatically guides the custody determination. It’s only possible that a child’s preference would be taken into account; it’s definitely not a rite of passage at a certain age. Children are children. When a child can have a choice is when the child becomes an adult – in Virginia, at age 18.

If a child expresses a preference, it’ll usually come in through the Guardian ad litem. A Guardian ad litem (or GAL, for short) is an attorney appointed to represent the child’s interests. The GAL will interview the child, conduct home visits, and interview the parents and others involved in the case and, ultimately, render a decision to the judge about what type of arrangement is in the child’s best interests. Their recommendation may or may not coincide with the child’s expressed preference.

Usually, this is how a child ‘testifies’. Through the use of a Guardian ad litem, their perspective can be heard without the child actually needing to appear in court.

It’s also theoretically possible – though probably unlikely – that the judge could talk to the child him or herself. This would usually be conducted in camera, meaning in chambers, privately, with just the judge and the child present. It’s still unusual, and still considered stressful and/or potentially damaging for the child. So, it’s unusual.

What if my child is subpoenaed?

I’ve heard a couple crazy stories about kids being subpoenaed – but not actually needed in court. If you do receive a subpoena, I’d reach out either to my attorney or to the court directly to see if the child is really needed. I have definitely heard of this happening and no one really knowing how or why a subpoena was issued.

Just because you receive a subpoena does not mean that yours will be the rare case where your child will actually be expected to testify – but just double check. Technically, though, if you’ve received a subpoena, the kids should be there on the date of the hearing (unless they were released or if your attorney says its okay to leave them at home). If I were you, though, I’d bring someone extra – your mom, maybe? – to help watch the kids outside of the courthouse. You could always call (using your attorney’s phone, since you won’t be allowed to bring yours into the courtroom) to let her know to bring the kids on in if they’re needed, but otherwise keep them separate from the proceedings.

It’s very, very unusual that a child would be called to testify. It happens, but it’s really rare. For more information, request a copy of our Virginia custody book for moms, or give our office a call at 757-425-5200 to schedule a consultation.