Can Children Testify in Child Custody Cases?

Q: What Factors Should I Consider When Deciding If My Child Should Testify?

Your child's age. The cross-examination. The necessity of your child's testimony.

Q: When Is It Necessary for a Child to Testify?

If there is evidence of abuse or domestic violence in the home, a child’s testimony is relevant and necessary.

Going through a divorce can be overwhelming for all parties involved. When there are complex custody issues that need to be resolved, this can be difficult for the children, particularly if the couple cannot reach an agreement regarding the legal and physical custody of their children. One of the toughest questions that arise in child custody cases is whether a child should testify during the custody proceedings, and at what age it is appropriate for a child to testify in court. Family court judges will consider a number of factors when ruling on important custody issues, and whether it is appropriate for the child to testify. If you have concerns about whether your child can or should testify during your custody case, contact an experienced child custody lawyer as soon as possible.

Is There an Age Requirement for Children to Testify in Court?

In New Jersey, the law does not provide clear direction when it comes to the age at which a child’s can or should testify in court. As a general rule of thumb, most courts consider children who are 14 years of age or older to be qualified to express their opinion and understand the impact of their decisions. However, the courts recognize the fact children develop at different rates. One 14-year-old may be equipped to answer difficult questions and understand the impact that their answers may have, whereas another 14-year-old may consider the thought of testifying too upsetting or traumatic. Ultimately, while custody laws in New Jersey allow children to testify in court, judges tend to avoid going down this road due to the negative impact it can have on the child’s mental and emotional health.

While there is no specific age requirement, the child must be considered “competent” in order to testify in a child custody case. That means that the child must promise to tell the truth and demonstrate that they understand the difference between the truth and a lie. It is unlikely that a child under the age of 12 will be expected to testify.

Do I Need to Notify the Court If My Child Will Be Testifying?

If you wish to have your child testify in your child custody hearing, you must identify and disclose the child witness that you plan to use. You can do this by notifying the court at the time of the case management conference, or by filing a notice of child witness. This document must be filed no later than 60 days before the hearing date. The notice must provide a detailed explanation as to why the child’s testimony will benefit your case.

Are There Other Options for Testifying Other Than in Court?

Testifying in a courtroom can be a stressful experience for anyone regardless of age or level of maturity. It is not something that children should be expected to do unless the circumstances truly warrant it. Fortunately, there are alternate methods that can be used to allow the child to testify without experiencing the stress of a courtroom. The following are examples of other methods of testifying, assuming all parties are represented by a child custody lawyer:

The child may be interviewed without the parents present, but with both parties’ lawyers present.
The child may be interviewed while both parents and their child custody lawyers are observing the interview through an electronic method. This is only permitted if observing the interview will not interfere with what is in the child’s best interest.
Both parents’ lawyers are allowed to question the child in court without the presence of both parents.
The child may be interviewed by a third party.

When considering whether to allow a child to testify via an alternate method, the family court judge will consider the following factors:

Where the testimony will be taken
The individuals that will be present during the testimony
How the child will be questioned
Whether an electronic method is an option

How Does a Child’s Testimony Impact the Judge’s Decision?

Judges carefully consider whether a child should be allowed to testify in a child custody hearing. If the child is permitted to testify, it is after careful consideration about whether the child is “of sufficient age and shows a strong capacity to reasonably understand the impact of decisions.” While a judge considers the child’s wishes when determining who should be awarded custody, the decision will be based on a range of factors. After all of the other evidence and testimonies are considered, including what is in the best interest of the child, the child’s wishes may or may not be granted.

What Factors Should I Consider When Deciding If My Child Should Testify?

One of the biggest issues that divorce lawyers and parents face in a custody case is determining whether a child should testify in the custody proceedings. Some parents will go to great lengths to protect their child from the stressful and overwhelming court process. Others will fight tooth and nail to ensure that their child’s voice is heard, and that their wishes are made very clear. Deciding whether your child should be called to the stand is a decision that should not be made lightly. Keep the following factors in mind when considering this decision:

Your child’s age: As mentioned, when determining whether a child should testify in a custody case, the child’s age is a key factor for a number of reasons. The younger the child is, the less like it is that he or she will be able to provide an accurate, detailed account of an incident. For example, a four-year-old child’s ability to recall details from something that happened days or weeks ago will make their testimony unreliable, whereas a 14-year-old will be able to remember more details from a particular incident, have a better understanding of the difference between the truth and a lie, and provide a more reliable testimony.
The cross-examination: In a custody hearing, the child will be required to answer questions from both parents’ attorneys. The judge will ensure that the child is not subject to a harsh line of questioning, harassment or an unnecessary repetition of questions. The questions must also take into account the child’s age, maturity, and level of understanding. However, the child will not be exempt from cross-examination, which can be very stressful and upsetting, particularly when answering certain questions means saying something negative about one parent.
The necessity of your child’s testimony: Consider whether your child’s testimony is absolutely necessary. While judges prefer to keep children out of court proceedings, there may be situations where it is appropriate. For example, if a child feels very strongly about wanting to testify, being barred from doing so can be more traumatic than testifying if it makes them feel ignored, voiceless or disregarded. In addition, if both parties have completely different accounts of important events, and the child is the only witness who can set the record straight, it may be necessary to allow him or her to testify.

When Is It Necessary for a Child to Testify?

If there is evidence of abuse or domestic violence in the home, a child’s testimony is relevant and necessary. However, obtaining accurate testimony can be challenging given the nature of the abuse and the difficult questions that the child will have to answer. Oftentimes, the abuser denies any wrongdoing, accuses the other parent of trying to alienate them, or claims that the child is lying. Other than the abuser, the child is often the only witness to what has happened to themselves, so the child’s testimony is crucial to breaking the cycle of abuse and removing him or her from the abusive environment. A dedicated child custody lawyer will work closely with you to determine whether it is in your child’s best interest to testify, and whether it will have a positive impact on your case.

Morristown Child Custody Lawyers at Lyons & Associates, P.C. Assist Clients with Complex Custody Issues

If you and your spouse are going through a divorce, and you have questions or concerns about whether your child should testify in a custody hearing, do not hesitate to contact the Morristown child custody lawyers at Lyons & Associates, P.C. Our skilled legal team will assist you with every step of the divorce process, address your questions and concerts, and tirelessly work to protect your legal and parental rights. To schedule a free, confidential consultation, call us today at 908-575-9777 or contact us online. Located in Freehold, Somerville and Morristown, we serve clients throughout Somerset, Woodbridge, Morristown, Parsippany, Rockaway, Short Hills, Chatham, Randolph, Madison, and Morris Plains.