In any custody case, parents may want the court to hear directly from their children. The children can provide information about the parent’s relationship, any abuse they have experienced, and other relevant events for the court’s consideration. In family law we often have one party’s word against the other – and the only other potential witness is the parties’ child. Having a child testify can be helpful to your case, if it’s done correctly.
In many cases, the child, unfortunately, becomes a witness to everything that is going on between the parents. And it is not uncommon for the child to have the most knowledge about the facts of the case outside of the parents.
In divorce if a child (under the age of 18) is called as a fact witness to the breakdown of the marriage, the judge generally will not let the child testify. However, if the child is called to testify about facts relating to custody and visitation, the court may allow a child to testify.
In Virginia, there is no set age at which the court allows the opinion of the child to control its ruling. Virginia Code § 20-124.3, the best interest of the child statute, lays out the factors the court must consider when making a decision regarding custody and/or visitation. Virginia Code § 20-124.3 (8); states that the reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience is relevant to the court’s decision. It is important to remember that the testimony of the child is just one factor, out of 10, that the court must consider when making a custody and/or visitation determination.
If you want to call your child as a witness, or the other parent has decided to call the child as a witness, the judge may decide to interview the child. The judge may choose to conduct the interview with the child “in camera,” which means outside the hearing of the parties to the case or their attorneys (this generally takes places in judge’s chambers). If the judge decides to conduct an “in camera” interview then he/she has to follow the requirements of Virginia Code § 20-124.2:1. That statute requires that the judge shall prepare a record of the interview and the record shall be made a part of the court’s record of the case unless the judge decides that in doing so, it would endanger the safety of the child. Usually, the record is prepared by having a court reporter present for the interview. If guardian ad litem (“GAL”) was appointed to represent the child, the guardian would be present for the interview. A guardian ad litem will also give the court a recommendation about whether such an interview is appropriate, or if the evidence can be obtained through another method.
A guardian ad litem is an attorney who has taken special training who is being assigned to represent the best interest of your children. The GAL, at the end of the case, will make a recommendation on who the best parent is and what they believe is in the best interest of the children. It is fair to say that the court puts a lot of weight on what the GAL recommends. You can read more about the role of the GAL here.
Once the judge has interviewed the child, the decision will be made as to the reasonable intelligence, understanding, and age of the child. If the court decides that a child is too immature, then the judge may ignore the testimony of the child regardless of the age. A good example of this is a 14-year-old child who wants to go live with the other parent because that parent does not make them clean their room, do their homework, or go to bed on time—in that instance, the court would not take the testimony of the child very seriously.
In one case we had, two children wanted to go live with the father. The children were 9 and 14 and the GAL recommended the judge speak with children. So, in accordance with Virginia Code § 20-124.2:1, the judge spoke with each child separately, in his chambers, in front of the GAL and the court reporter. In rendering his decision, he explained that he did not take the testimony of the 14-year-old child into account because when asked why she wanted to live with her father, she said because her bed at his house was more comfortable. However, the judge did take the testimony of the 9-year-old child into consideration. When she was asked why she wanted to go live with her father she explained how her father was more available to help her with homework, how he would talk to her more than her mother about what was going on with her life, and how he helped her work through personal problems. The judge found the 9-year old’s answer to be very well thought out, mature, and persuasive. It is important to note that judges will not always discuss the children’s testimony in their ruling; but, he decided to do so since neither child really said anything bad about the other parent.
In the example above, the GAL is the one that recommend that the judge speak to the children. This is important because the judges are not always happy when a parent asks for the children to testify. In asking for your child to testify, the court can make a negative inference regarding that party’s parenting decisions. Judges generally prefer that parties leave the children out of the courtroom.
In another example, the 15-year-old son really wanted to live with his mother. Through the course of litigation, it became apparent that the GAL was not listening to child and was recommending that he live with father. The mother requested that the child be allowed to testify and give his opinion. The judge denied the request and let the mother know that she was upset that she even tried to call the child to testify. This was a relatively bad outcome for mother and the child since the court placed a lot of weight on the opinion of the GAL and the child ultimately went to live with the father.
The example above shows how risky it can be for one parent to call the child to testify. The court can, and often will, not allow the child to testify. Further, calling the child to testify gives the other side a good argument that you are in fact involving the child in this litigation, and other adult matters, which is harmful to the child.
Another issue we sometimes see is that the child will surprise the parent with his/her testimony. It is not uncommon for a child to say things that the parents want to hear. So, when the parents are trying to ask the child where he/she wants to live we see the child tell both parents that she/he would like to live with the parent asking the question. This can become problematic if you are relying on the child to help your case.
The reason that the law requires judges to meet with children away from the open court is the hope that the child will not sway his or her testimony because the parents are watching. Even though the child may have told you one thing, it does not mean that they will tell the judge the same thing in private.
One of the most common outcomes of having children testify is that the child will have positive things to say about both parents. The child will generally tell the judge that he/she would like to spend equal time with the parents and that he/she does not want to choose.
Even if the child is allowed to testify, it is important to remember that testimony is only 1 of 10 factors that the court must consider. So, while the child may express an opinion favorable to you that the court takes into consideration, if the other factors weigh against you, it is likely that you will not have a positive outcome.
If you believe that calling a child to testify will help your case, you still have to take the appropriate steps as with any other witness. You must properly identify the child as a witness, and you may need to subpoena the child to court—if the child will be with the other parent on the day the court is schedule, you will need to subpoena the child at the other parent’s home.
In addition, once you identify the child as a witness, you are opening up the child to a witness is normally treated. It is not uncommon for attorneys to conduct long, drawn out depositions on witnesses to ascertain what they will testify about in court; but to also try and prove the witness is lying or has been coached in some way. Depositions are not generally considered a positive experience and subjecting your child to something of that nature may not be what you actually want.
Whether or not a child testifies in court is a very big decision. The easiest, and best way, to get a child to testify in court is to have the GAL call the child as a witness. If the GAL is not willing to call the child as a witness, you must be sure you know what the child is going to say and that what they have to say is determinative for your case—make sure the reward of having the child testify outweighs the risk of the judge taking a negative inference against you for calling the child to testify. This is big decision that must be decided with you and your attorney.
If you intend to bring your child to court to testify, it’s time to get counsel. The top-rated attorneys at Melone Hatley, P.C. are here to help! Melone Hatley, P.C. is a family and estate firm serving Virginia Beach and Northern Virginia. Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service. Through our high standards, we strive to be a trusted resource to our clients.
We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives. For more information about custody, contact our office at 1-800-479-8124 or visit our website: www.melonehatley.com.