There is no law or rule that prevents your child from testifying or being interviewed by the judge at their custody trial. The reasonable preference of your child is one of ten factors a court considers in deciding custody. Your child can testify in the courtroom as a witness or they can be interviewed by the judge in chambers.
A law controls what must happen when a judge interviews a child in chambers. The judge must make a record of the interview if the parents and their lawyers are not in chambers with the child and the judge. The record is made by a court reporter. You need to arrange for and pay a court reporter to record the interview. Any record of the interview becomes part of the court file unless the judge decides it needs to be kept private to protect the safety of the child. Only the judge asks the child questions. The Guardian ad litem (GAL), the parents and their lawyers do not ask questions. The parents must agree to waive the requirement to make a record. If there is no agreement and no court reporter present, the judge may not interview your child.
Your child can participate as a witness in the trial. That is when the lawyers and the GAL ask them questions. Witnesses testify about facts. Only experts can testify about their opinion. Your child’s preference is their opinion and not necessarily proper testimony from a witness. A lawyer might be able to successfully object to the child’s preference testimony being considered by the court. If either party has a lawyer, that lawyer cannot talk to your child without the permission of the GAL.
Having your child come to court is not the only way to get their preference heard by the judge. The GAL must tell the court your child’s preference if it different than the outcome they recommend. Parents and other witnesses can testify about the child’s maturity and ability to make good decisions for themselves. This evidence helps the judge evaluate the reasonableness of the child’s preference. The more reasonable the preference the more it may influence the outcome.
The GAL helps your child prepare for their role in the up-coming trial whether a parent wants them to testify or not. The GAL’s job is to minimize the negative impact of participating in the trial on the child. The GAL might ask the judge to allow the child to come to the court to be interviewed after the trial is finished but before the judge decides.
It is up to the judge to decide the child’s role in the trial if one or both parents object to the child participating. If you object to your child’s participation, you need to get a motion filed with the court right away. You need to ask to be heard on that motion before the child is brought to the courthouse. If the other side has issued a witness subpoena for the child, the proper objection to file is a motion that asks the court to “quash” the witness subpoena. You might consider asking to have the child “interviewed” by the judge rather than appear as a witness. Also, that the GAL can express the child’s preference without the child being present and asked to testify.
In a recent case I objected on behalf of my client when the other side wanted the child to testify in the courtroom. The trial judge decided to hear the evidence in the case first and decide at the end whether or he would hear from the child either in chambers or in the courtroom. After the parents, the child’s therapist and the custody evaluator testified, the judge decided it would do more harm to the child to testify than the testimony would help him decide custody. We had the child with a relative away from the courthouse ready to bring him if the judge decided he wanted to interview or hear from him.
Testimony from any witness is subject to objection and cross examination. The child as a witness is no different. The judge decides the witness’s competency to testify and their credibility. A witness’s testimony must be relevant to the issues before the court and must conform to the rules of evidence as well as rules governing procedure.
A courtroom is not a place for children. Consider carefully the impact on your child before you let them participate in their custody trial.
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